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Non-Compliant Election Statements May Lead to Denied Claims

The Office of Inspector General (OIG) report entitled Medicare Hospice Care for Beneficiaries in Nursing Facilities: Compliance with Medicare Coverage Requirements (Compliance Report), which was issued on September 8, 2009, found that hospices failed to meet one or more Medicare coverage requirements in 82% of claims for services provided to nursing facility residents. One coverage requirement which the OIG found to be particularly problematic was that of hospice election statements. Specifically, the OIG found that in 29% of the claims reviewed, the election statements did not meet one or more hospice election requirements. In 4% of the claims, the election statements were missing altogether.

While prospective hospice patients have long been required to sign hospice election statements prior to receiving care, the Centers for Medicare & Medicaid Services (CMS) has not provided any model language for hospices to include in their statements. Instead, it has been up to each hospice to develop its own election statements, and this has resulted in some hospices being technically non-compliant with these informed consent requirements. 42 C.F.R. §418.24 requires, in part, that election statements include:

  1. i) The identification of the particular hospice that will provide care to the individual;
  2. ii) 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;
  3. iii) An acknowledgement that the beneficiary waives all rights to certain Medicare services for the duration of hospice care;
  4. iv) 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; and
  5. v) The signature of the individual or representative.

The primary issue related to election statements, as identified by the OIG, was that the statements did not explain that hospice care is palliative rather than curative or that the beneficiaries waived Medicare coverage for certain services related to their terminal illness. In some instances, the election statements were not signed by the beneficiaries or representatives.

The OIG also found that in 9% of the claims, election statements contained misleading language. An example of such misleading language offered by the OIG is, “[i]f I choose care or treatment that has not been preauthorized by the hospice team or included in the [hospice plan of care], I understand that I have removed myself from the hospice benefit effective immediately upon my action.” The OIG has long recognized that uninformed consent to elect the Medicare Hospice Benefit is a potential fraud and abuse risk area, and recommends that hospices develop specific written policies and procedures related to election statements, and train their staff accordingly. Office of Inspector General, Compliance Program Guidance for Hospices. 64 Federal Register p. 54035 (Oct. 5, 1999).

Even though the OIG recommended in its Compliance Report that CMS develop model election statements for hospices, there is no indication if or when CMS intends to do so. Therefore, you should review your hospice’s election statement to ensure that it meets all of the regulatory requirements and clearly explains the nature of hospice care so your patients may give proper informed consent. Otherwise, you are subject to denied claims for failure to meet this important Medicare condition of coverage.

© 2020 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 16
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