Litigation. Compliance. Defense. Health Care Fraud & Criminal Defense Trial Lawyers
Orange County 714-294-2000
Los Angeles 310-873-8140
Detroit 313-462-7972
Nationwide 214-469-9009

OIG: Hospices Must Improve Medicare Compliance

Schedule a Free Consultation Today

Experienced Nationwide Hospice Medicare Compliance Attorneys

The Department of Health and Human Services (HHS) is one of many federal agencies tasked with enforcing federal Medicare regulations. 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. 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 Medicare 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 hospices’ 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.

This is Why You Are in Good Hands

I found Dr. Nick Oberheiden online and the moment I spoke with him, I knew he is a true federal law expert. Nick outlined a defense strategy that was so thought through and so out of this world--and he executed and delivered like I would never have imagined. Nick is unbelievably good!! Nick is the very best of the best lawyers. Hire Nick if you want a classy, smart, and extremely successful lawyer.read more
David Lo
David Lo
Nick is extremely professional and knows what he is doing. He is also very kind as a person (unless he is in court!) I would recommend him to just about anyone if they need an amazing lawyer that is top notch and would frankly be scary to face in the court room. He will always do a great job representing his clients. Thank you very much.read more
Anna Pham
Anna Pham
Nick is the absolute top expert in any federal case
Jeff Crilley
Jeff Crilley
Extremely successful attorney with brilliant litigation skills.
Shannon Faulk
Shannon Faulk
Smart. Smarter. Nick. As a healthcare executive, I once ran into a litigation issue. I hired Nick and, literally, before I knew it the case was resolved in my favor. Nick has an incredible presence and every lawyer in the room knows that Nick will do exactly what he says. It was a mesmerizing experience to see Nick in action! Very calm and determined, Nick is the absolute top litigator.read more
Whitney Bryant Milam
Whitney Bryant Milam
Nick has been a friend and trusted advisor for almost 10 years. As anyone just looking at his bio can tell, Nick is an outstanding attorney in highest demand across the country. All healthcare providers should hire attorney Nick Oberheiden!! You will not be disappointed.read more
Pamela mulrooney
Pamela mulrooney
I have never witnessed a lawyer with such uncompromising client commitment, integrity, and dedication. On weekends, at night, in the morning— Nick is always there for his clients, constantly identifying solutions, no matter how complex the situation. The only question I have after all these years of knowing Nick: Does he ever sleep?read more
Laura Driscoll
Laura Driscoll
Dr. Oberheiden has served as council and represented our company on several occasions, even during depositions, contract reviews and providing invaluable advice on multiple occasions that transpired into multilevel success in our business. He and his teams knowledge of both local, state and federal statues, accompanied by their areas of expertise law regarding best asset protection, estate planning and wealth management solutions have provided both professional and personal growth for my companies, safeguarding them and protection my family’s name and legacy. I would recommend this firm and Dr. Nick Oberheiden without hesitation. I have no doubt that you will experience success with his council.read more
Corban Milam
Corban Milam
I have worked with Nick Oberheiden for over ten years on various litigation matters in and around New York City. Nick is an accomplished and seasoned lawyer and litigator---efficient, reliable, practical and, at the same time, highly academic. Nick will take the time necessary to understand a client's short- and long-term goals, and tailor his representation and advice to work toward and achieve those ends. Nick is a zealous advocate for his client, and will never sacrifice his client's interests for a quick or easy resolution to a case. At the end of the day, Nick is a great person to know if you or your business is in need of a top litigator or defense attorney.read more
Brendan Carosi
Brendan Carosi
Nick Oberheiden was the 3rd representation for my sister case. She accused of crimes that she did not commit, and later a victim of Attorney misconduct with her initial council that sabotaged her case. We went with a big firm for second council which was the biggest mistake. They did not make time for us yet burned through the retainer with all the evidence but NO motivation to do the job and fight for her. Nick was able to get more accomplished in 24 hours of taking over then any other attorney. I can not express how grateful I am that he flew down a few days later and spend hours and hours with my sister. Regardless of the outcome at least we can rest comfortably that we had someone who went above and beyond and explored all options. I HIGHLY HIGHLY recommend Nick if you are in a tough spot and need help.read more
Mohsin qazi
Mohsin qazi
When I was faced with one of the most terrifying and unexpected situations in my life, I called Dr. Oberheiden. I had vetted other attorneys and came right back to him. His knowledge, expertise, and reassuring presence made the decision easy. Throughout my case, his level of communication was what I needed and expected. He constantly updated me on the status and progress of my case and was able to “talk me off the ledge” when the stress of it all would set in. He is simply the best of the best...there’s not a question about it.read more
Angela Lee
Angela Lee
Nick is a superb lawyer with exceptional skills and a formidable personality. Nick works harder, he thinks smarter, and he delivers faster than any lawyer you will ever find. Good, better, Nick!
Jacqueline Singleton
Jacqueline Singleton
1st class service. Atty. Iberheiden and Atty. Lynette Byrd were always available for us during the whole process of our Home Health Audit. Thank you so much!
Ed Orosa
Ed Orosa
I am a healthcare compliance consultant with almost 25 years of experience. The one advice I have for anyone seeking a lawyer with unbeatable healthcare law experience is to hire attorney Nick Oberheiden. For the past 8 years, I have worked with Nick on a variety of healthcare matters—from DEA compliance to DOL supervisory rules to setting up PT and pain management clinics. I have never once seen a client not being 100% intrigued by Nick’s proven expertise in the field of healthcare structuring and compliance. Dr. S.T.read more
Raft Consultants
Raft Consultants
Nick Oberheiden is a spectacular lawyer, a true life saver. Nick is simply the very best!
Michael P
Michael P
Nick Oberheiden is the absolute best federal litigation attorney. Nick gives you the immediate comfort of feeling 100% protected. He is polite, respectful— and extremely compelling. His legal strategy turned out to be brilliant.
Marshall M
Marshall M
Great firm, with a great firm record of experienced healthcare and litigation attorneys.
Chris Anderson
Chris Anderson
Great attorney who will fight to protect your rights. I would recommend Nick to any friend or family member.
Gerrid Smith
Gerrid Smith

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. 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 Percent – The 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 Percent – The 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 Percent – The 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.”

Have you been charged with a crime?

Don’t delay. Learn about your rights.

Text Dr. Nick Oberheiden now!

(310) 873-8140

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 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 Medicare compliance, 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 | Oberheiden, P.C.

With offices around the country, the Oberheiden, P.C. 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 (888) 705-5902 or contact us online today.

Orange County 714-294-2000
Los Angeles 310-873-8140
Detroit 313-888-8807
Nationwide 888-452-2503