Blog | September 20, 2023

CMS Increases Focus on Hospice Care: As Always, Documentation is Key

In August 2023, The Centers for Medicare & Medicaid Services (CMS) issued a statement on the actions it is taking related to the integrity of hospice care for Medicare beneficiaries.  Based on media reporting, particularly an expose in The New Yorker in November 2022, hospice care and billing have become a focus for lawmakers and CMS.  The unique challenges associated with handling claims and litigation in hospice care was also discussed at the recent DRI Senior Living and Long-Term Care Seminar.  One take-away is clear, providers must ensure that documentation supports decisions to admit residents to palliative and hospice care.

Deciding on Palliative or Hospice Care

As explained by Leigh M. Vaughan, MD, FHM, FAAHPM, of the Medical University of South Carolina at the DRI seminar, there is a distinction between palliative and hospice care.  Care for the “whole patient” and focus on quality of life are both managed through a team approach which includes physicians, nurses, social work, chaplain, complementary services (massage, acupuncture), and family support.  Patients receiving palliative care may still have aggressive treatment along with symptom management.  A hospice diagnosis is a life limiting diagnosis, with admission criteria based on the specific disease.  Questions typically addressed by the physician in making hospice determinations include:  Does the patient have symptoms that are poorly controlled?  Is the patient tired of coming to the hospital?  Are there no more treatment options?  The physician also considers a patient’s functional status, including how much they are moving, interacting, eating, etc.  Hospice care allows for pain and symptom management to relieve suffering.  Hospice services are provided across settings, including a patient’s home, assisted living, skilled nursing facility, or a hospital.

Dr. Vaughn emphasized the importance of managing patient and family expectations when discussing palliative and hospice services to ensure there is a clear understanding of the type of care that will be provided.  J. Richard Moore of Bleeke Dillon Crandall further noted in the DRI presentation that when faced with a claim, providers must be able to defend the decision to move away from curative care to palliative or hospice care.  Documentation of these discussions with patients and families is critical in demonstrating the appropriateness of care based on the individual’s status, wants, and needs.

Medical Record Organization
Early Risk Assessment
Record Production Support
Medical Chronology

Media and Government Investigations

The New Yorker article detailed the experience of a hospice marketing employee who ultimately became a whistle-blower.  The author reports that hospice currently is a $22 billion industry, with over 70% of hospice providers being for-profit, whose margins are three times that of non-profit providers.  According to the Office of Inspector General at HHS, inappropriate billing by hospice providers costs taxpayers “hundreds of millions.”  These allegations, along with other reports, prompted lawmakers to request an investigation by CMS in December 2022.

In response, CMS has visited over 7,000 hospices as of mid-August 2023.  400 of these are now facing administrative action.  In Arizona, California, Nevada, and Texas, CMS will be conducting a medical review before making payments to all newly enrolled hospices.  They are also initiating a national pilot project to review claims following an individual’s first 90 days of hospice care to determine if they are eligible for the benefit.  Other regulatory changes are being considered to address hospice fraud, and new survey and enforcement requirements are being implemented.  Information collected is disclosed on the Quality, Certification, and Oversite Reports (QCOR) website, and will eventually be available on Care Compare.

Providers can also be subject to the enforcement of the False Claims Act by the Department of Justice with allegations including, but not limited to, admitting patients who are not hospice appropriate, maintaining patients who are not actively dying, kickbacks to physicians for referrals, and categorizing patients in higher intensity levels.

To demonstrate the appropriateness of a hospice admission, the care team, or Interdisciplinary Group (IDG) must ensure Medicare requirements for a Hospice Plan of Care (POC) are met, which include:

  • Interventions to manage pain and symptoms.
  • Detailed statement of the scope and frequency of services necessary to meet the specific patient and family needs.
  • Measurable outcomes anticipated from implementing and coordinating the POC.
  • Drugs, treatments, medical supplies, and appliances necessary to meet the needs of the patient.
  • Documentation by the IDG of the patient’s or representative’s level of understanding, involvement, and agreement with the POC, in accordance with the hospice’s own policies, in the clinical record.

Quality Documentation

Heightened media, government, and legal scrutiny of hospice care providers emphasizes the importance of complete and accurate documentation to justify the initiation and ongoing use of the services.  Assisted living and skilled nursing providers face challenges in ensuring comprehensive documentation, particularly if they are working in coordination with outside hospice providers.  While facilities can directly manage the procedures in place when hospice services are provided by their own staff, the difficulty arises when dealing with potentially multiple outside agencies servicing various residents.  Communication protocols with these agencies need to be standardized, and documentation procedures between the hospice record and AL/SNF record must be monitored and enforced.  A coordinated focus must be in place to train staff across the continuum of care, including primary care physicians, nursing, admission counselors, social services, and case managers, regarding Medicare requirements for hospice admission.  As noted above, records must include discussions concerning managing the patient and caregiver expectations along with all relevant clinical data.  Complete documentation is the best defense in responding to surveys, claims, and litigation.

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