Medicare Hospice Benefit Requirements for Eligibility and Coverage Katherine Lucas, PhD August 24, 2011

Office of the Inspector General (OIG) Report Issued September 2009 Entitled “Medicare Hospice Care for Beneficiaries in Nursing Facilities: Compliance with Medicare Coverage Requirements” Objective: to determine the extent to which hospice claims for beneficiaries in nursing facilities in 2006 met Medicare coverage requirements. 2

Sep 2009 OIG Report Regarding claims for hospice beneficiaries in nursing facilities: 82% did not meet at least 1 Medicare coverage requirement; 33% did not meet election requirements; 3

Sep 2009 OIG Report 63% did not meet plan of care (POC) requirements; For 31% of claims, hospices provided fewer services than in the POC; 4% did not meet certification requirements. 4

Sep 2009 OIG Report The OIG made 3 recommendations: Educate hospices about the coverage requirements and their importance in ensuring quality of care; Provide tools and guidance to hospices to help them meet the coverage requirements; Strengthen the monitoring practices regarding hospice claims. 5

Focus This presentation focuses on the first two OIG recommendations, related to education and to providing guidance. 6

Medicare Statute Coverage requirements are given in the Medicare statute, which is in the Social Security Act (the Act) Key hospice sections of the Act include: 1812(d): benefits periods, election, services waived upon election 1814(a)(7): requirements for coverage & certification 1814(i): for Medicare payment, services must be reasonable 1861(dd): definition of terminal illness, attending physician 7

Medicare Regulations The Code of Federal Regulations (CFR) outlines eligibility, coverage, and payment regulations based on the statutory requirements in CFR Title 42, Sections 418.20 – 418.30 and 418.200 – 418.405 . The sections of the CFR in between §418.30 and §418.200 are the Conditions of Participation and are not our focus today. 8

Benefit Policy Manual CMS provides guidance to understand eligibility, election, and coverage requirements in its Hospice Benefit Policy Manual, which is available online as Internet Only Manual (IOM) 100-02, Chapter 9. The manual can be accessed from the hospice center webpage: www.cms.gov/center/hospice.asp 9

Benefit Policy Manual We encourage providers to refer to the Hospice Benefit Policy Manual (BPM), as it’s an easily accessible tool and explains our coverage requirements. The content of this presentation is in our BPM, and addresses the OIG’s concerns. The BPM is referenced throughout these slides as BPM followed by the section number (i.e., BPM §20.1) 10

Coverage Requirements Per §418.200, “Requirements for Coverage” for beneficiaries who meet the hospice eligibility requirements: 1) Hospice services must be reasonable and necessary for the palliation and management of the terminal illness as well as related conditions. 2) The individual must elect hospice care in accordance with §418.24. 11

Coverage Requirements 3) A plan of care must be established and periodically reviewed by the attending physician, the medical director, and the interdisciplinary group of the hospice program as set forth in §418.56. 4) That plan of care must be established before hospice care is provided. 12

Coverage Requirements 5) The services provided must be consistent with the plan of care. 6) A certification that the individual is terminally ill must be completed as set forth in §418.22. All of these requirements must be met for Medicare to cover and pay for hospice services. 13

Eligibility for Medicare’s Hospice Benefit: 42 CFR §418.20 14

Eligibility The beneficiary must have Medicare Part A . The beneficiary must be certified by a hospice physician and the attending physician (if any) as being terminally ill, with a life expectancy of 6 months or less if the illness runs its normal course. The beneficiary is considered terminally ill if he/she has a medical prognosis of 6 months or less. Source: §418.20 and BPM §10 15

Benefit Periods: 42 CFR §418.21 16

Benefit Periods Hospice care is organized into benefit periods: The periods consist of two 90-day periods and an unlimited number of 60-day periods. The periods of care are available in the order listed and may be elected separately at different times. Source: §418.21 and BPM §10 17

Certification Requirements: 42 CFR §418.22

Certification of Terminal Illness (CTI) The hospice must obtain written certification of terminal illness for each benefit period, even if a single election continues in effect for an unlimited number of periods. Source: §418.22(a)(1) & BPM 20.1 19

Timeframe for Completion If the hospice cannot obtain the written certification within 2 calendar days after a period begins, it must obtain an oral certification within 2 calendar days and the written certification before it submits a claim for payment. Source: §418.22(a)(2)&(3) & BPM §20.1 20

Timeframe for Completion Certifications and recertifications can be completed no more than 15 days prior to the start of the benefit period. A certification or recertification is made up of several components, one of which is the face-to-face encounter. The face-to-face encounter must be completed prior to, but no more than 30 calendar days prior to, the start of the benefit period. Source: §418.22(a)(3)&(4) & BPM §20.1 21

CTI Content Certification will be based on the physician's or medical director's clinical judgment regarding the normal course of the individual's illness. Predicting of life expectancy is not always exact. The fact that a beneficiary lives longer than expected in itself is not cause to terminate benefits. Source: §418.22(b) & BPM §10 22

CTI Content The certification must conform to the following requirements: It must specify that the individual's prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course. Source: §418.22(b)(1) & BPM §20.1 23

CTI Content Clinical information and other documentation that support the medical prognosis must accompany the certification and must be filed in the medical record with the written certification. Initially, the clinical information may be provided verbally, and must be documented in the medical record and included as part of the hospice's eligibility assessment. Source: §418.22(b)(2) & BPM §20.1 24

CTI Content 3)The physician must include a brief narrative explanation of the clinical findings that supports a life expectancy of 6 months or less as part of the certification & recertification forms, or as an addendum to the certification & recertification forms. If the narrative is part of the certification or recertification form, then the narrative must be located immediately prior to the physician's signature. Source: §418.22(b)(3) & BPM §20.1 25

CTI Content If the narrative exists as an addendum to the certification or recertification form, in addition to the physician's signature on the certification or recertification form, the physician must also sign immediately following the narrative in the addendum. Source: §418.22(b)(3) & BPM §20.1 26

CTI Content The narrative shall include a statement directly above the physician signature attesting that by signing, the physician confirms that he/she composed the narrative based on his/her review of the patient's medical record or, if applicable, his/her examination of the patient. Source: §418.22(b)(3) & BPM §20.1 27

CTI Content The narrative must reflect the patient's individual clinical circumstances and cannot contain check boxes or standard language used for all patients. The narrative associated with the 3rd benefit period recertification and every subsequent recertification must include an explanation of why the clinical findings of the face-to-face encounter support a life expectancy of 6 months or less. Source: §418.22(b)(3) & BPM §20.1 28

CTI Content A hospice physician or NP who performs the encounter must attest in writing that he or she had a face-to-face encounter with the patient, including the date of the encounter; The attestation, its accompanying signature, and the date signed, must be a separate and distinct section of, or an addendum to, the recertification form, & must be clearly titled. Source: §418.22(b)(4), BPM §20.1, Hospice face-to-face guidance Powerpoint, Hospice Center webpage 29

CTI Content 4) The written certifications and recertifications must include the signature(s) of the physician(s), the date signed, and the benefit period dates that the certification or recertification covers. Source: §418.22(b)(5) & BPM §20.1 30

Sources of Certifications For the initial 90-day period, the hospice must obtain written certification statements (and oral certification statements if applicable) from— The medical director of the hospice or the physician member of the hospice interdisciplinary group (IDG); and The individual's attending physician, if any. For subsequent periods, the only requirement is certification by the hospice medical director or physician member of the IDG. Source: §418.22(c) & BPM §20.1 31

Sources of Certification “Attending physician” is defined as a doctor of medicine or osteopathy, or nurse practitioner, who is identified by the individual, at the time he or she elects to receive hospice care, as having the most significant role in the determination and delivery of the individual's medical care. The statute prohibits nurse practitioners from certifying or recertifying hospice patients. Source: §418.3, §418.22(c)(1)(ii) & BPM §10, §20.1, §40.1.3.2 32

CTI Records Hospice staff must— (1) Make an appropriate entry in the patient's medical record as soon as they receive an oral certification; and (2) File written certifications in the medical record. Source: §418.22(d) & BPM §20.1 33

Signature Requirements Valid certifications and recertifications may be signed electronically or by hand. Stamped signatures are not acceptable. Source: Medicare Program Integrity Manual, (IOM 100-09, Chapter 3), section 3.3.2.4 34

Face-to-Face Encounter The hospice face-to-face encounter was required in the Affordable Care Act, which became effective January 1, 2011. The face-to-face encounter requirements are included in the regulations related to the certification of terminal illness, and reflect the language in the statute. 35

Face-to-Face Encounter CMS requires that prior to the beginning of the patient’s 3rd benefit period, and prior to each subsequent benefit period, a hospice physician or hospice nurse practitioner (NP) must have a face-to-face encounter with the individual to determine continued eligibility of the individual for hospice care and attest that such a visit took place. The provision is effective for 3rd benefit periods or later periods which occur on or after January 1, 2011. Source: §418.22(a)(4), BPM 20.1, Hospice face-to-face guidance Powerpoint, Hospice Center webpage 36

Timing of the Encounter The face-to-face encounter must occur prior to, but no more than 30 calendar days prior to, the 3rd benefit period recertification, and prior to, but no more than 30 calendar days prior to, every subsequent recertification thereafter. Source: §418.22(a)(4), BPM 20.1, Hospice face-to-face guidance Powerpoint, Hospice Center webpage 37

Who Can Perform the Encounters Only a hospice physician or a hospice nurse practitioner can perform the encounter. A hospice physician is a physician who is employed by the hospice or working under contract with the hospice. A hospice nurse practitioner must be employed by the hospice. Source: §418.22(a)(4) & BPM §20.1 38

“Employee” Definition A hospice “employee” means a person who: (1) Works for the hospice and for whom the hospice is required to issue a W–2 form on his or her behalf; (2) if the hospice is a subdivision of an agency or organization, an employee of the agency or organization who is assigned to the hospice; or (3) is a volunteer under the jurisdiction of the hospice. Source: §418.3 and BPM §20.1 39

CTI Content: Face-to-Face Attestation The physician or nurse practitioner (NP) who performs the face-to-face encounter with the patient must attest in writing that he or she had a face-to-face encounter with the patient, including the date of that visit. Source: §418.22(b)(4) & BPM §20.1 40

Attestation When a physician other than the certifying physician or an NP performs the encounter, the attestation must state that the clinical findings of that visit were provided to the certifying physician, for use in determining whether the patient continues to have a life expectancy of 6 months or less, should the illness run its normal course Source: §418.22(b)(4), BPM §20.1, Hospice face-to-face guidance Powerpoint, Hospice Center webpage 41

Attestation The recertifying physician’s attestation regarding the face-to-face encounter can be included on the recertification itself or an addendum to the recertification. If the attestation is included on the recertification, it must be located above the physician’s signature. One physician signature may suffice for the attestation, narrative and recertification. Source: Hospice face-to-face guidance Powerpoint, Hospice Center webpage 42

Attestation Where both the encounter attestation and narrative are included as an addendum to the recertification, one physician signature can suffice for both the narrative and attestation. Both the narrative and the attestation must be located above the physician signature. Source: Hospice face-to-face guidance Powerpoint, Hospice Center webpage 43

Attestation The physician or NP who performed the encounter must sign the attestation. If a practitioner other than the recertifying physician (such as an NP) performed the encounter, a separate encounter attestation signature is required. The encounter attestation can be on the same page as the recertification and narrative, but must be a separate section above the signature of the physician or NP who performed the encounter. The attestation can also be a signed addendum to the certification. Source: Hospice face-to-face guidance Powerpoint, Hospice Center webpage 44

Face to Face Encounter Only the recertifying physician can sign the certification and physician narrative. Source: Hospice face-to-face guidance Powerpoint, Hospice Center webpage 45

Timing Exceptions for Face-to-Face Encounters for New Admissions Where a hospice newly admits a patient who is in the 3rd or later benefit period, exceptional circumstances may prevent a timely face-to-face encounter prior to the start of the benefit period. In such documented cases, a face-to-face encounter which occurs within 2 days after admission will be considered timely. Three examples follow: Source: BPM §20.1 46

Timing Exceptions (cont.) 1) if the patient is an emergency weekend admission, it may be impossible for a hospice physician or NP to see the patient until the following Monday; 2) if CMS data systems are unavailable, the hospice may be unaware that the patient is in the third benefit period; 3) where a patient dies within 2 days of admission without a face to face encounter, a face to face encounter is deemed to have occurred. Source: BPM §20.1 47

Face-to-Face Encounters If the required face-to-face encounter is not timely, the hospice would be unable to recertify the patient as being terminally ill, and the patient would cease to be eligible for the Medicare hospice benefit. In such instances, the hospice must discharge the patient from the Medicare hospice benefit because he or she is not considered terminally ill for Medicare purposes. Source: 418.20, Q&A 10535 48

Face-to-Face Encounters Where the only reason the patient ceases to be eligible for the Medicare hospice benefit is the hospice’s failure to meet the face-to-face requirement, we would expect the hospice to continue to care for the patient until the required encounter occurs, enabling the hospice to re-establish Medicare eligibility. 49

Face-to-Face Encounters Occurrence span code 77 does not apply to situations when the face-to-face encounter has not occurred timely. While a face-to-face encounter must occur timely, the face-to-face attestation may be completed after the benefit period begins, but prior to billing. Source: Q&As 10536 & 10537 50

Face-to-Face Encounters & Billing If a physician provides a medically reasonable and necessary physician service to the patient during the visit, that portion of the visit is billable. Hospices cannot bill for physician services provided by an NP unless the NP is the attending physician. Source: Hospice face-to-face guidance Powerpoint, Hospice Center webpage 51

Electing Hospice: 42 CFR §418.24 52

Electing Hospice Filing an election statement. An individual who meets the eligibility requirements in §418.20 may file an election statement with a particular hospice. If the individual is physically or mentally incapacitated, his or her representative may file the election statement. Source: §418.24(a) & BPM §10 53

Electing Hospice “Representative” means an individual who has the authority under State law (whether by statute or pursuant to an appointment by the courts of the State) to authorize or terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill patient who is mentally or physically incapacitated. This may include a legal guardian. Source: §418.3 54

Electing Hospice The election statement must include the following: Identification of the particular hospice that will provide care to the individual. The individual's or representative's acknowledgement that he or she has been given a full understanding of the palliative rather than curative nature of hospice care, as it relates to the individual's terminal illness. Source: §418.24(b) & BPM §20.2 55

Electing Hospice Acknowledgement that certain Medicare services are waived by the election. The effective date of the election, which may be the first day of hospice care or a later date, but may be no earlier than the date of the election statement. The signature of the individual or representative. Source: §418.24(b) & BPM §20.2 56

Electing Hospice Waiver of other Medicare benefits. For the duration of an election of hospice care, an individual waives all rights to Medicare payments for the following services: Hospice care provided by a hospice other than the hospice designated by the individual (unless provided under arrangements made by the designated hospice). Source: §418.24(d) & BPM §10 57

Electing Hospice Any Medicare services that are related to the treatment of the terminal condition for which hospice care was elected or a related condition or that are equivalent to hospice care except for services— Provided by the designated hospice: Provided by another hospice under arrangements made by the designated hospice; Source: §418.24(d) & BPM §10 58

Electing Hospice and Provided by the individual's attending physician, who may be a nurse practitioner (NP), if that physician or NP is not an employee of the designated hospice or receiving compensation from the hospice for those services. Source: §418.24(d) & BPM §10 59

Electing Hospice Duration of election: An election to receive hospice care will be considered to continue through the initial election period and through the subsequent election periods without a break in care as long as the individual— (1) Remains in the care of a hospice; (2) Does not revoke the election; and (3) Is not discharged from the hospice. Source: §418.24(c) & BPM §10, 20.2 60

Electing Hospice Re-election of hospice benefits. If an election has been revoked by the patient, the individual (or his or her representative if the individual is mentally or physically incapacitated) may at any time file an election for any other election period that is still available to the individual. Source: §418.24(e) & BPM §20.2 61

Electing Hospice Once the initial election is processed, the Common Working File maintains the beneficiary in hospice status until death or until an election termination is received. Source: BPM §10 62

Electing Hospice Medicare services for a condition completely unrelated to the terminal condition for which hospice was elected remain available to the patient if he or she is eligible for such care. For example, if a hospice patient with COPD should be injured in a car accident, those injuries would be covered by fee-for-service Medicare. Source: BPM §10 63

For More Information: The Code of Federal Regulations (CFR), Title 42, Part 418 is available online as an e-CFR at: www.gpoaccess.gov/cfr/index.html The Hospice Benefit Policy Manual, Q&As and Face-to-face Guidance Powerpoint are available on the hospice center webpage at: www.cms.gov/center/hospice.asp 64

For More Information: Questions? Email them to: PCGOUTREACHCALLS.DAYTWO@CMS.HHS.GOV 65