How a volunteer hospice can avoid legal problems
Avoid duplicate services
Transitions Pre-Hospice, a mostly volunteer-staffed program of Hospice of Martin and St. Lucie in Stuart, FL, provides free services designed to bridge the gap between the diagnoses of a potentially life-limiting illness and Medicare hospice eligibility. The hospice avoids questionable practices by ensuring the free services it provides do not duplicate services provided by nursing homes.
In an advisory opinion on the program’s operation, the federal Office of Inspector General (OIG) found that, "Under the program, the hospice does not offer any services to nursing home patients that duplicate the services nursing homes are obligated to provide, such as food preparation and respite care or that are covered by the Florida Medicaid nursing facility per diem," the advisory said.
According to the OIG, the Transitions program raises three principal issues:
- whether the hospice knows or should know that its provision of free services to potential hospice patients will likely influence the patients’ choice of hospice provider;
- whether one purpose of the program is to induce patients to use the hospice;
- whether the provision of services to the patients who live in nursing homes may be remuneration to the nursing homes for permitting the hospice access to their patients.
While the OIG said that at least some of the services being provided may have value and constitute remuneration, it would not subject the program to sanctions under the anti-kickback statute for several reasons. First, the services are provided by unpaid volunteers. Second, the benefits of the program are primarily intangible in that they are designed to help the patients adjust to their illnesses by helping them cope with the day-to-day burdens of life. Third, the program provides a substantial benefit to a vulnerable patient group. Finally, the OIG said there are "substantial barriers" to a beneficiary’s election of hospice care, including the requirement that the beneficiary renounce coverage for curative medical treatment for the terminal condition.
The OIG noted that it has additional concerns with the provision of these services to patients in nursing homes. "In particular, we are concerned that the services provided by the hospice could substitute for services the nursing home would otherwise have to provide, thereby resulting in the hospice providing free services to the nursing home," said the OIG.
While the OIG was clear in its advisory that its opinion should not be taken as permission for or protection of similar nursing home and hospice arrangements, it does provide a road map from which guidance can be gleaned.
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