Medicare changes range from benign to troublesome

More documentation may be required

Hospices could have to develop and follow new procedures for certifying terminal illnesses, admissions, and discharges, if proposed rule amendments are finalized by the Centers for Medicare & Medicaid Services (CMS).

The proposed rule, which appeared in the Nov. 22, 2002, Federal Register, would revise existing regulations that govern coverage and payment for hospice care under the Medicare program. The revisions are required by the Balanced Budget Act of 1997, the Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of 1999, and the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000.

"We are proposing to make conforming changes to the Medicare hospice regulations to reflect the statutory changes discussed above," CMS wrote in the Federal Register. "In addition, we are proposing to revise the regulation to reflect current policy on the documentation needed to support a certification of terminal illness, admission to Medicare hospice, and discharge from hospice. We are proposing to add one new requirement that would allow for discharges from hospice for cause under very limited circumstances."

The proposed changes represent a mixed bag of proposals ranging from benign to troublesome, says Judi Lund Person, MPH, vice president of state and regulatory affairs for the National Hospice and Palliative Care Organization (NHPCO) in Alexandria, VA.

But CMS sees the changes as merely housekeeping moves that follow legislation and tighten gaps in current regulation.

"The general lack of hospice data and the unpredictable nature of hospice care have made it extremely difficult to predict the savings or costs associated with the changes contained in this proposed rule," CMS wrote. "However, we believe that the proposed changes would create very little, if any, new economic or regulatory burdens on hospice providers. These proposed changes are either statements of current policy or clarifications of policy that would benefit hospice providers."

Troubling for the hospice industry is the resurrection of issues raised by Operation Restore Trust, a 1994 joint investigation between the then-named Health Care Financing Administration and the Office of the Inspector General that sought to weed out abuses in the Medicare system. Hospices were singled out as abusers of the Medicare program because many admitted patients who lived longer than six months, despite terminal illness certifications.

The hospice industry has since successfully argued that the characterization was unfair and led many physicians to delay terminal illness certification, causing patients to be admitted to hospice too late to reap the full measure of the Hospice Medicare Benefit. CMS also has issued directives explaining that the six-month diagnosis should be based upon a "physician’s clinical judgment" and should not be interpreted as a deadline for the patient to either die or be discharged.

The NHPCO is concerned that revisiting Operation Restore Trust nearly 10 years after it was initiated will negate the gains the industry has enjoyed as a result of greater awareness of palliative and end-of-life care.

"We want to make sure the gains we’ve made in the past few years are not lost," Person says. The references to Operation Restore Trust "are odd because you would think if CMS still had problems [with hospice], they would have been addressed by Benefits Improvement Act of 2000."

In the 1990’s, Operation Restore Trust accused hospices of admitting patients who were ineligible for the Hospice Medicare Benefit. CMS’ latest take on the issue says hospices as a whole fail to provide the proper documentation that supports admission to hospice.

A mere signed certification is not sufficient’

"Operation Restore Trust found that certification and recertification occurred without the documentation that would support the terminal illness prognosis," CMS wrote in the Nov. 22, 2002, Federal Register. "Accordingly, in 1995, we issued program memoranda requiring clinical findings and other documentation that support the medical prognosis. This documentation must accompany a certification and be filed in the patient’s medical record. We recognize that medical prognostications of life expectancy are not always exact, but the amendment regarding the physician’s clinical judgment does not negate the fact that there must be a basis for a certification. A hospice needs to be certain that the physician’s clinical judgment can be supported by clinical findings and other documentation that provide a basis for the certification of six months or less if the illness runs its normal course. A mere signed certification, absent a medically sound basis that supports the clinical judgment, is not sufficient for application of the hospice benefit under Medicare."

Using Operation Restore Trust as evidence, CMS makes the case that certifications are being made for patients who are chronically ill but who are without complications or other circumstances that indicate a life expectancy of six months or less. As a result, CMS is proposing the following changes:

  • Regulations will be reworded to state that certification for the hospice benefit will be based upon the physician’s or medical director’s clinical judgment regarding the normal course of the individual’s illness.
  • Regulations will add language that requires specific clinical findings and other documentation supporting the medical prognosis to accompany the written certification and be filed in the medical record.

While the NHPCO doesn’t take issue with the need to document clinical findings that lead to terminal illness certification, it has told CMS the language suggests that physicians and hospice medical directors must perform additional, perhaps unnecessary tests, says Person. The NHPCO is hoping CMS adds the word "or" so that the regulation would read: ". . . requires specific clinical findings and/or other documentation supporting the medical prognosis . . ."

The hospice trade industry group is also concerned with proposed changes to regulations governing admission to hospice. Specifically, CMS wants to mandate consultations between the attending physician and hospice medical director.

CMS wants to establish admissions guidance

"Also in response to concerns raised by Operation Restore Trust, we are proposing to establish general guidance on hospice admission procedures," CMS wrote. "Currently, there is no guidance in manuals or regulations regarding admission procedures. We are proposing to add a new [section], Admission to hospice care,’ which would establish specific requirements to be met before a hospice provider admits a patient to its care.

"We realize that many hospice patients are referred to hospice from various nonmedical’ sources. This is entirely appropriate; however, it is the responsibility of the medical director, in concert with the attending physician, to assess the patient’s medical condition and determine if the patient can be certified as terminally ill."

Those new requirements in the proposed "Admission to hospice care" section would do the following:

  • allow admission of a patient only on the recommendation of the medical director in consultation with the patient’s attending physician, if any;
  • require that the hospice medical director consider at least the following information when making a decision to certify that a patient is terminally ill: diagnosis of the patient’s terminal condition; any related diagnoses or comorbidities; and current clinically relevant findings supporting all diagnoses.

The problem with these two proposals is that they mark a departure from the normal interaction between attending physicians and medical directors. Many hospices have complained that requiring attending physicians to consult with medical directors could pose a barrier to hospice admission, says Person.

In addition, the proposal seems to negate the hospice interdisciplinary team’s role in the admissions process. Also, NHPCO points out that the proposed regulation gives no guidance on how consultations are supposed to take place. "We question whether meeting this will prove to be cumbersome," Person says.

Discharge planning

The proposed regulations also try to address concerns hospices have had for years regarding the discharge of patients due to cause — for instance, patients, their families, or caregivers become abusive and represent a threat to the hospice worker who must enter the home. Current regulations allow hospices to discharge patients only when the patient is no longer terminally ill.

Under the proposed changes, hospice may discharge a patient if:

  1. the patient moves out of the hospice’s service area or transfers to another hospice;
  2. the hospice determines that the patient is no longer terminally ill; or
  3. the hospice determines, under a policy set by the hospice for the purpose of addressing ``discharge for cause’’ that also meets the requirements discussed in the remainder of the new paragraph (a), that the patient’s behavior is disruptive, abusive, or uncooperative to the extent that delivery of care to the patient or the ability of the hospice to operate effectively is seriously impaired.

"It’s helpful to have a discussion about discharging patients," says Lund. "We don’t expect that our reasons for discharging patients will be any more lenient than other health care providers’."

Other changes being proposed include changes to the hospice benefit period and how physician certifications are obtained. Those changes include:

  • The hospice benefit period will be two 90-day periods, followed by an unlimited number of 60-day periods.
  • A hospice must obtain written certification before it submits a claim for payment.
  • If the hospice cannot obtain the written certification within two calendar days, it must obtain an oral certification within two calendar days, and the written certification before it submits a claim for payment would be required for each benefit period rather than just for the initial 90-day period.