Early hospice referrals can suggest fraud
Admitting physicians, hospitals may be at risk
Question: We have had several patients referred to hospices who did not die as soon as expected, and now the referring physicians have raised the question of what that means in terms of Medicare requirements. Is it possible that the physician could be charged with improper referral if the patient hangs on longer than anyone expected?
Answer: Yes, it is possible for the physician to get caught up in charges of fraud in such a situation, says Timothy Jost, JD, professor of law and health services management at Ohio State Uni ver sity in Columbus. He has studied the issue of fraud in hospice care, and he tells Healthcare Risk Management that physicians can find themselves in a seemingly no-win situation.
The federal government’s continuing crackdown on health care fraud has placed an emph asis on hospice care, Jost says. In the Office of the Inspec tor General’s "Compliance Program Guidance for Hospices," regulators make it clear that there are many ways hospice programs can result in fraud charges, but the guidance document specifies one risk area as "admitting patients to hospice care who are not terminally ill."
(The compliance guide can be found on the Internet at http:// www.hhs.gov/progorg/oig/ modcomp/hospic99.htm.)
A six-month window
For a hospice patient to receive reimbursement for hospice services under Medicare, the patient must be "terminally ill." That generally means the patient is expected to die within six months. For some patients, particularly those dying from something other than cancer, even the most experienced physician can find it difficult to pinpoint the time remaining.
The OIG acknowledges the problem, but the compliance guide says "it is important to make a distinction between admitting a patient to a hospice program and certifying a patient for the Medicare Hospice Benefit. Based on an individual hospice’s admission criteria, some patients may be admitted to hospice care prior to an estimated six months before death, as long as the hospice is paid fair market value for its services.
Regardless, patients can be certified for the Medicare Hospice Benefit only when it is reasonable to conclude that a patient’s life expectancy is six months or less if the illness runs its normal course. In other cases, alternative modes of reimbursement, often provided through community support, should be sought outside the Medicare Hospice Benefit."
While he knows of no actual fraud charges resulting from a patient’s unexpected survival in a hospice, Jost says he sees the risk as more than theoretical. If the OIG had not already made it clear that it has its sights on hospice care, the risk might not be worth worrying about, he says.
Document reason for referral
With the government’s emphasis on all types of fraud, and hospice as a specific area, Jost suggests that physicians and hospitals should take extra care in documenting hospice referrals. "The compliance program focuses on hospices to make sure patients are terminally ill, but a doctor who knowingly referred a patient to a hospice who is not terminally ill could be guilty of providing a false statement to Medicare," he says.
"The hospice can be in trouble for accepting the patient, but the doctor can be questioned as to why [he or she] referred the patient if [the patient] was not within six months of death," he notes.
Physicians should do their best to provide an accurate prognosis for the patient, of course, but they have been doing that all along. The best defense for physicians and hospitals is to document, as thoroughly as possible, the reasoning for the hospice referral, Jost says.
"The main thing you can do is document very carefully that this referral is in compliance with those OIG guidelines," he explains. "Fully explain the reasoning for why this patient is a good hospice referral. If the patient lives longer than expected, you want to be able to show that your assessment was based on those criteria, that you did your best to comply."
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