Hospice Compliance

Hospice Compliance Discussed by Experienced Nationwide Medicare Attorneys

The Department of Health and Human Services (HHS) is one of many federal agencies tasked with enforcing federal Medicare regulations, including hospice compliance. The Office of Inspector General (OIG) is HHS’s primary enforcement arm and is the largest inspector general’s office in the federal government. According to OIG’s website, it consists of approximately 1,600 [employees] dedicated to combating fraud, waste, and abuse and to improving the efficiency of HHS programs, including Medicare. In fact, [a] majority of OIG’s resources go toward the oversight of Medicare and Medicaid.

For several years, hospices have been among OIG’s top priorities with regard to Medicare enforcement and hospice compliance. Based upon the OIG’s recent report, Hospices Should Improve their Election Statements and Certifications of Terminal Illnesses, (the OIG Hospice Report) it appears that this is unlikely to change anytime soon.

More Than 33 Percent of Hospice Stays Raise Medicare Compliance Concerns

The 28-page OIG Hospice Report identifies two primary deficiencies in hospice compliance. The first has to do with election statements. According to the OIG Hospice Report, the OIG identified election statement deficiencies in more than one-third of all general inpatient care stays analyzed for purposes of the report. These deficiencies largely had to do with failing to sign statements stating that either: (i) the beneficiary was waiving certain Medicare benefits by electing hospice care, or (ii) the hospice care was palliative rather than curative in nature.

The second major deficiency was in the area of physician certifications. According to the OIG Hospice Report, 14 percent of all general inpatient care stays involved a missing, inadequate, or fraudulent physician certification. In particular, the report notes deficiencies including:

[N]ot meet[ing] requirements such as composing a narrative when certifying that the beneficiary was terminally ill and appear[ing] to have limited involvement in determining that the beneficiary was appropriate for hospice care.

Hospice Owners Are Being Targeted for Federal Civil and Criminal Prosecutions

With billions of Medicare dollars going to hospices every year, OIG is committed to enforcing Medicare’s requirements for reimbursement of hospice care services. Failure to obtain a valid election statement and use of invalid or fraudulent physician certifications are key enforcement targets, as hospice’s noncompliance with these requirements not only results in waste of Medicare resources but can lead to inadequate or inappropriate patient care, as well.

In recent years, some of OIG’s civil and criminal enforcement cases against hospices and hospice owners have included:

• A three-year prison sentence and $1.1 million restitution penalty for a hospice owner who submitted fraudulent Medicare claims for patients who were not suited to hospice care and were not aware they were receiving hospice services.
• A 14-year prison sentence and $16.2 million restitution penalty for a hospice owner who altered patient records and paid healthcare professionals to refer patients even though they were not suited for hospice care.
• A potential 10-year prison sentence in an ongoing case where a hospice’s Chief Operating Officer has admitted to causing staff members to put non-qualifying patients in hospice care.

As you can see, the potential consequences of Medicare fraud in the hospice setting are severe. While the vast majority of hospices that violate Medicare’s requirements do so inadvertently, this often is not enough to avoid coming into the crosshairs of OIG.

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In Focus: The Hospice Election Statement and Physician Certification Requirements

What is an Election Statement?

In order to receive hospice care that is eligible for Medicare, the patient (or beneficiary) must sign an “election statement” prepared by the hospice. This election statement must contain certain acknowledgements, including:

• That the patient has been provided with complete and accurate information regarding the palliative (rather than curative) nature of hospice care; and,
• That the patient is waiving his or her right to Medicare coverage for treatment not provided or arranged for by the patient’s chosen hospice services provider.

What Are Hospices Obligations Regarding Election Statements?

Hospices must obtain Medicare-compliant election statements from all beneficiaries prior to commencing palliative care, this is a crucial part of hospice compliance. If a beneficiary chooses to revoke his or her election by providing a signed statement, the hospice must respect the beneficiary’s decision.

What is a Physician Certification?

In addition to supplying an election statement, in order to qualify for Medicare-reimbursed hospice care, a patient must also receive a physician certification stating that (i) the patient is terminally ill, and (ii) the patient’s life expectancy is six months or less. The physician certification must include a narrative explaining the physician’s clinical findings, which cannot include standardized language or be based on a check-the-box form. The physician must also attest that he or she prepared the narrative personally based on a physical examination or a review of the patient’s clinical record.

What Are Hospices Obligations Regarding Physician Certifications?

Hospices must obtain a Medicare-compliant physician certification for each patient. Hospices cannot “recruit” patients for hospice care and they cannot compensate doctors for certifying patients who do not meet the standards for Medicare-reimbursed hospice services. Hospices are also prohibited from falsifying physician statements; and, while hospices can provide care for patients who live longer than six months, they cannot rely on fraudulently prepared certifications in order to provide treatment to non-terminally-ill patients.

Key Statistics from the OIG Hospice Report

Getting further into the details of the OIG Hospice Report, the OIG identified numerous specific deficiencies with election statements and physician certifications some of which (as you might expect) were more common than others. Here are some of the most noteworthy statistics:

Election Statements: Key Statistics Leading to Enhanced OIG Enforcement

Key statistics regarding inadequate and fraudulent patient election statements include:

• 19 PercentThe amount of election statements failing to specify that the patient was electing Medicare hospice benefits. According to the OIG Hospice Report: It is important for beneficiaries to know which benefit they are receiving, especially because eligibility criteria and election periods in some State Medicaid programs differ from those in Medicare, and private health insurance may cover hospice care very differently than Medicare.

• 12 PercentThe amount of election statements failing to state that the patient acknowledged he or she was waiving certain Medicare benefits by electing hospice care, or else containing an inaccurate waiver of benefits. For example, some election statements stated that the beneficiary waived the right to all other benefits under the Medicare program while receiving hospice benefits… [but a] beneficiary who elects hospice care retains rights to Medicare payment for services to treat conditions unrelated to the terminal illness.
• 9 PercentThe amount of election statements that lacked required information about the nature of palliative care. Nearly one in 10 patients did not receive adequate disclosures regarding the fact that hospice services involve, patient- and family-centered care that optimizes the quality of life by anticipating, preventing, and treating suffering.

Physician Certifications: Key Statistics Leading to Enhanced OIG Enforcement

Key statistics regarding inadequate and fraudulent physician certifications for hospice care include:

• 10 Percent The amount of physician certifications that lacked a narrative entirely or only included the physician’s diagnosis of the patient’s condition. This means that the certifying physician did not explain the clinical findings that support a life expectancy for the beneficiary of 6 months or less, which in turn means that the hospice lacked the information required in order to bill for Medicare reimbursement.
• 5 Percent The amount of physician certifications that lacked an attestation. The OIG heavily emphasizes the attestation requirement for certifications, since, attesting that the narrative was based on an examination or record review [is an] important safeguard[] to ensure that certifying physicians fulfill their role and demonstrate active involvement in the certifying process.

What Can Hospices Expect in terms of Compliance for the Future?

Based on the issues identified in the OIG Hospice Report, the OIG made four recommendations to the Centers for Medicare and Medicaid Services (CMS):

• To develop and disseminate model text for election statements;
• To instruct surveyors to strengthen their review of hospice election statements and physician certifications;
• To educate hospices about election statement and physician certification requirements; and,
• To educate hospices regarding the effects on beneficiaries resulting from revocation of elections and being discharged from hospice care.

As a result, while hospices can likely expect additional guidance with respect to these key areas of Hospice compliance for medicare, this additional guidance may also result in additional enforcement efforts. For example, hospices that fail to take advantage of the OIG’s model language and educational offerings may become primary targets for federal investigations. Hospices that make honest mistakes will likely continue to find themselves at the center of federal investigations as well, and these hospices will need skilled legal representation in order to avoid the long-term consequences that can result from garnering the attention of CMS and the OIG.

Nationwide Legal Representation for Hospices in OIG Investigations and Hospice Compliance | The Criminal Defense Firm

With offices around the country, The Criminal Defense Firm is a law firm comprised of former federal fraud prosecutors and experienced healthcare fraud defense attorneys. If you or your hospice has been contacted by HHS, OIG, CMS, or any other federal agency regarding a potential Medicare billing issue, it is important that you speak with a lawyer as soon as possible. What initially appears to be a routine inquiry can quickly lead to a federal investigation. For a free and confidential consultation, call 866-603-4540 or contact us online today.

Brian J. Kuester

Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.