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Keys to Successfully Operating a Multi-Disciplinary Medical Practice

Throughout Florida, a healthy number of licensed healthcare practitioners and healthcare entrepreneurs are joining or investing in multi-disciplinary practices for numerous reasons. The primary reason for their foray into this modern approach to the delivery of medicine is usually due to the rising costs of administering treatment. They are attracted to the idea of increasing revenue, minimizing administrative duties, and partnering with like-minded individuals that may grow their individual practice. However, there are several business and legal challenges that members of a multi-disciplinary practice must consider prior to participating in the practice.

My DEA Number Was Stolen by an Employee and Used to Self-Prescribe Controlled Substances

Most doctors have various licenses that provide them with unique identification numbers. If any of these identification numbers find their way into the wrong hands it can be detrimental to the healthcare provider’s practice, their patients, and the public. Doctors hire support staff to run their practice efficiently by perform tasks that they don’t have time to do or don’t have the training to perform. This employer-employee relationship requires a certain level of trust from both parties because a bad act by either party can have a negative impact on the other party’s license, privileges, or reimbursement for services. Some of the support staff working in a doctor’s office may have access to HIPAA-protected information and a doctor’s unique identification numbers, such as his NPI and DEA numbers. What should you do if one of your employees steals your DEA number and uses it to self-prescribe controlled substance through e-prescribing or traditional prescription pads? What if they use your DEA number to order controlled substances for the practice without your knowledge or consent? Doctors should also be concerned with their potential liability for the unauthorized use of their DEA number.

Reporting Requirement

According to Florida Statute §893.07(5)(b), if your DEA number has been stolen and used to divert controlled substances you must file a police report with the local sheriff of that county within 24 hours after discovery. A person who fails to report a theft or significant loss of a controlled substance commits a misdemeanor of the second degree. It is not required that you press charges against the perpetrator of the theft, but I always recommend that my clients do so for several reasons. First, it shows authorities that you were not complicit in the theft. Second, it becomes part of the employee’s record and prospective future employers will be able to see this information on their criminal history during background checks. Third, as punishment for the emotional despair you will endure, negative impact on your practice, and the cost to hire an attorney to represent you in this matter.

You must also notify the Drug Enforcement Agency (“DEA”) within one business day upon discovery of a theft or significant loss of controlled substances. “Upon discovery” means that a report should be filed once the doctor has made a good-faith effort to determine whether a theft has in fact occurred. To determine whether a loss is significant the DEA provided the following factors in 21 C.F.R. § 1301.74(c):

1) The actual quantity of controlled substances lost in relation to the type of business;
2) The specific controlled substances lost;
3) Whether the loss of the controlled substances can be associated with access to those controlled substances by specific individuals, or whether the loss can be attributed to unique activities that may take place involving the controlled substances;
4) A pattern of losses over a specific time period, whether the losses appear to be random, and the results of efforts taken to resolve the losses; and, if known,
5) Whether the specific controlled substances are likely candidates for diversion; and
6) Local trends and other indicators of the diversion potential of the missing controlled substance.

The six factors mentioned above are not exhaustive and should be taken into account with other factors where appropriate.

According to 21 C.F.R. § 1301.76(b), the DEA’s implementing regulations for the Controlled Substance Act, all DEA registrants must complete DEA Form 106 and submit it to the DEA electronically or by mail. Once submitted, the DEA will begin the investigatory process and contact you to obtain additional information.

Additionally, you should contact the board or association that grants you your license to practice (i.e. Florida Board of Osteopathic Medicine) to see what reporting requirements they may have. For example, although I could not find a clearly defined rule requiring so, the Florida Board of Osteopathic Medicine (“FDOM”) strongly suggests that the doctor file a complaint with the Florida Department of Health (“DOH”) against the perpetrator of the crime so that they may conduct their own investigation into the matter. The complaint should be sent to the Consumer Services Section of the DOH. You will typically receive a response from the DOH within ten business days at which point in time they may schedule a phone call or an in person meeting as part of their ongoing investigation. This investigation may include interviewing parties in your practice about the perpetrator or the crime and facts and events that gave rise to the incident.

During all stages of the investigation, whether talking to the DEA, local police authorities, or the DOH you must be candid with the investigating authorities so that there isn’t any indication of impropriety on your part.

Steps To Prevent A Theft From Occurring Again

To limit the occurrence of future thefts or significant loss, providers should do the following:

  • Conduct employee background checks for all employees, including those employees with access to controlled substances. This background check should be performed in any local, state jurisdiction where the employee has worked and resided. Federal background checks should also be performed.
  • Schedule I and II drugs must be stored separately from other drugs in an approved safe. Schedule III and IV drugs must also be kept under lock and key but the security measures are more relaxed than their counterparts.
  • Utilize tracking software that records specific employee’s removal of controlled substances from locked cabinets together with an associated patient identifier. The software is designed to flag and alert the doctor of suspicious or unusual employee activity.
  • Providers should also conduct periodic internal audits to ensure that the inventory of controlled substances is accurate.
  • Providers may also want to consider a adopting a policy into their practice which requires employees to be periodically drug tested and suspicion-based drug testing. Drug testing should be performed prior to employment; the offer of employment should be conditional on a clean drug test.
  • Sparingly share you DEA number and e-prescribing log-in information only with trusted employees.
  • Make sure that your prescription pads are locked up in a secure area. Utilize watermarks on your prescription pads because it makes it more difficult to replicate.
  • Monitor remittance advice, claims and reimbursements to verify billed services match your income.
  • Observe and takes notes of erratic or unusual behavior by an employee (i.e. lying and mood swings) and physical abnormalities, such as “track marks”, excessive sweating, pale skin, red face with red eyes, etc.
  • Implement a training program to educate staff on controlled substance diversion.

 

Conclusion

If you are unable to determine whether a theft of controlled substances did in fact occur within one business day, you should err on the side of caution and file a report with the DEA and other appropriate authorities. It may also be necessary to notify the Center for Medicare and Medicaid Services If you fail to timely report a theft or significant loss you may face penalties and fines or any other remedial actions that the authorities deem are necessary. If any patients were affected by the theft you must determine how to appropriately notify your patients. Make sure to gather any documents or evidence that can be useful for authorities during their investigation. Any theft of prescribing pads should be reported to the Board of Pharmacy.

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This post was authored by Jamaal R. Jones, Esquire of Jones Health Law, P.A. for more information contact me at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com.

It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the information listed above.

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

 

SAFEE Event with Big Brothers Big Sisters

Jamaal Jones, Esq. participated in the SAFEE Program at Miami-Opa Locka Executive Airport with his “Little Brother” as part of a Community Involvement event for Big Brothers Big Sisters on August 6th. The students toured the entire airport, visited the air traffic control tower, and even took a short flight in a Cessna 172. For some of the kids, it was their first time flying and the smiles on their faces afterwards were priceless!

Mr. Jones is wearing one of our custom Jones Health Law T-Shirts. Send an email to JRJ@JonesHealthLaw.com to receive your free t-shirt after scheduling and attending a consultation.

What Are My Options If I’ve Been Wrongfully Terminated from my Hospital Residency Program?

Introduction

The long and arduous road to becoming a doctor is one that only a few people get to experience in their lives. Those few, dream of becoming a doctor at an early age which makes the journey seem that much longer. Your parent or neighbor might have been a doctor and that relationship might have created a desire to pursue the same career path. Maybe you were motivated by a desire to serve your community by providing health services to the poor or disabled. Unfortunately for you, your career as a doctor may come to a screeching halt before you complete your medical residency program. If you are at risk of being unceremoniously discharged from your residency program or have already been discharged there are certain legal considerations that you should examine.

Disciplinary Board

If you are discharged from a medical residency program it is important to examine the language contained in the hospital policies and procedure manual. In the manual it will explain the procedure for internal disciplinary action taken against hospital staff, which may require a mandatory board hearing depending on the alleged infraction. Prior to the board hearing, a neutral intermediary may be utilized so that direct communication between the hospital and the resident is limited. The disciplinary board may be comprised of a three-person panel where you can choose to present your defense. I would advise against signing any documents presented to you by the hospital after you have received written notice of the disciplinary hearing until you have spoken to an attorney with experience in health and employment law. The manual will state how many days the panel has to render its final decision regarding your status in the hospital residency program, and the method by which the panel used to render the final decision. There will also be a procedure for filing a timely appeal should you choose to do so after an unsuccessful initial board hearing.

Suspension, Termination, or Resignation

The panel may recommend suspension or termination from the hospital residency program. The length of suspension will vary depending on the circumstances. A board’s decision to suspend or terminate a resident should be determined objectively but it’s difficult to refute the fact that there is a subjective component. This is why one resident who committed similar bad acts may only be suspended while another resident may be terminated. Hospitals have the authority here to make that determination and unless there is clear employment discrimination a court is unlikely to undermine and overthrow the hospital’s decision.

In some instances, I have witnessed the hospital allow the resident to voluntarily withdraw or resign from the residency program so that it doesn’t diminish their chances of gaining acceptance to another residency program. The thought of starting anew in a different residency program is chilling, but given the circumstances this could be your best option. You must decide whether you want to explain why you resign from the program or you can let your records speak for themselves. If you elect to be terminated from the program and subsequently apply for admission into a different program you will be required to submit your records from your previous residency program. Additionally, the hospital residency program may ask for references where the details of your departure may come to light. Further, the hospital manual should be examined alongside your hospital residency employment contract.

Arbitration, Lawsuit, or Administrative Complaint

Your residency employment contract will contain the terms and conditions of your employment during the residency program. The contract will most likely bind you to a mandatory arbitration in the event that a legal matter arises between you and the hospital. Hospitals prefer arbitration because:

  • They are usually less expensive;
  • Parties can choose the arbitrator:
  • Parties can choose the time and place of the arbitration;
  • The proceedings are held privately behind closed doors; and
  • Its outcome does not become part of the public record.

 

Arbitration is not held in court but in a court-like setting complete with discovery proceedings and an arbitrator acting as a judge. Additionally, the arbitration is resolved much faster since the parties don’t have to wait for availability on the court’s docket, which can take months before you are actually heard by a judge.  Final judgment by an arbitrator is binding and very difficult to successfully appeal.

Depending on the reason why you were fired you may be able to file a complaint with the Accreditation Council for Graduate Medical Education (“ACGME”) which is an organization that in part, helps physicians in graduate medical education receive fair solutions to residency/fellowship education-related concerns and formal complaints. Most residency programs are accredited by the ACGME. The ACGME requires that residents have a right to present their defense before a board or panel. The ACGME’s Resident Services division does not adjudicate disputes between individual persons and residency/fellowship programs or sponsoring institutions. Resident Services does not address issues regarding matters of admission, appointment, contract, credit, discrimination, promotion, or dismissal of faculty members, residents or fellows.

As such, depending on the facts and circumstances I advise residents against filing a lawsuit against the hospital unless you are terminated for an illegal reason. Illegal reasons can include, but are not limited to, discrimination based on race, gender, sexual orientation, country of origin, nationality, or religion. You may make a claim alleging discrimination under Title VII of the Civil Rights Act of 1964 and breach of contract if the facts could support such a claim. In cases where residents have successfully won lawsuits against the hospital for discrimination they introduced ample evidence from which it could be concluded that they were unlawfully discriminated against. Residents may try to obtain evidence of the following:

(a) testimony or affidavit from doctors in a direct supervisory position to attest to the satisfactory nature of your work;

(b) evidence to rebut other supervisor’s negative evaluations of you – the resident;

(c) evidence of other residents with low test scores and unfavorable evaluations who have been allowed to continue in the program; and

(d) evidence that you were able to successfully complete the residency requirements since leaving the hospital.

In some jurisdictions, direct evidence of discrimination is not required. A plaintiff may entitled to rely on circumstantial evidence to convince the trier of fact that an employer’s explanation for his discharge is pretextual and that his discharge was more likely than not motivated by discriminatory intent. However, more of today’s courts are less likely to rule in a resident’s favor unless the resident can show direct evidence of discrimination. In Zaklama, M.D. v. Mt. Sinai Medical Center, 842 F.2d 291, 296 (11th Cir.1988), Dr. Zaklama was able to obtain evidence of a-d above, but it took approximately six years for the case to be fully adjudicated and a lot of money in legal fees.

Regardless of whether you go before a hospital board, arbitration, or file a complaint with the ACGME you will have the opportunity to review your evaluations, personnel file, and credentialing so that you can build your defense.

Conclusion

If you feel that you are at risk of being removed from your Hospital Residency Program and would like to speak to an attorney about your options please contact us immediately. You should explore all of the options available to you because this is your career at stake.  There is typically a very short window to file an appeal so it is imperative that you contact an attorney immediately if you are facing a disciplinary board hearing at your hospital.

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This post was authored by Jamaal R. Jones, Esquire and Matt Lester of Jones Health Law, P.A. for more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com.

It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the information listed above.

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Business and Legal Considerations for Selling my Physician Practice

Business and Legal Considerations for  Selling my Physician Practice

Physicians may be determine that it is in their best interest to sell their medical practice for various personal and business reasons. A few of the reasons may chose to sell are because: (1) they are retiring; (2) relocating to another city/state; (3) maintaining the practice is too much of a burden/stress; (4) they are physically unable to meet the demands; (5) lower reimbursement rates; or (6) someone simply made them an offer that they couldn’t refuse. Regardless of the reason why a physician may choose to sell their practice there are certain business and legal considerations that they should factor into the decision process.

 

Who is Buying Physician Practices?

 

Florida is one of the few states that allows for a non-physician to own a medical practice, excluding optometry, dentistry or chiropractic practices. Large corporations, private equity firms, hospitals, health systems and ambitious physicians looking to expand their practices are all common buyers in today’s market. Due to healthcare reform the value of physician practices are diminishing in many markets.

 

What is the Value of my Physician Practice?

 

Many business owners, including physicians, have an idea in their head of what they THINK that their business is worth. Often there is an emotional component that is factored into what the physician perceives their practice to be worth.  I encourage my physician clients to be realistic with their expectations. Let’s face it, there’s no guarantee that patients will remain with a practice once their beloved physician departs and purchasers are aware that while there is some benefit to buying an existing practice there is also significant risk. For this reason, many purchasers choose to pay the purchase price over several months after closing and hire the prior owner as an independent contractor during the transition. I advise my clients to meet with a healthcare consultant and bankers who work primarily in the medical and dental industry so that they can determine what the fair market value (“FMV”) of their practice is. A FMV is partly based on the tangible assets of a practice and consist of all furniture, fixtures and equipment owned by the practice such as examination tables, desks, chairs, and medical equipment.

 

There are numerous methods and factors to be considered in determining the value of the physician’s practice when preparing to sell. The value of a physician practice fluctuates based on: (a) payer mix; (b) referral sources; and (c) the presence of ancillary services. If a practice has one or more ancillary services that it provides that can dramatically increase the value and eventual purchase price of your practice due to the increased profit margins.

 

The process includes requirements or rules that must be followed in order to legally sell a practice. All legal and business considerations should be addressed to ensure the selling physician receives the best possible price for the sale of their practice. The selling physician must be careful to avoid any actions that can reduce the value of the practice during the sale.

 

Sellers must be careful not to misrepresent terms and conditions of the physician practice because it is highly likely everything will be discovered during the purchasers exclusive due diligence period. The selling process ends with a negotiated agreement with attorneys covering the asset purchase agreement, revised partnership agreement (if applicable) and employment agreements to name a few. During the closing process all agreements will be signed and executed.

 

How do I Structure the Sale of my Physician Practice?

 

The sale of physician practices can be structured in various ways depending on the facts and circumstances specific to that particular practice (i.e. debts, obligations, leases, etc.) A physician has to choose between selling stock in their practice, assets, or in some cases a combination of both.

 

A physician that sells stock in their practice will pay less taxes on the purchase price. However, purchasers are weary of purchasing stock because they assume responsibility for the practice’s liabilities. The trade off with a stock purchase is that the purchaser retains the physician’s payer contracts, tax ID number resulting in a much smoother and faster transaction.

 

In an asset purchase agreement the physician has to be very specific about what is included in the sale (i.e. art and certain furniture isn’t included). In this strategy, the physician-seller positions the sale as an alternative to a startup practice. The value is not as high, but a small amount of intangible value can be justified for:

 

  • Speed when compared to that of than a startup;
  • Less losses than a startup;
  • a trained workforce already in place, telephone number, website, and historical marketing already in place;
  • Medical Equipment and furniture are present;
  • Stronger Patient base and reputation.

 

A transaction involving the value of intangible assets of a practice could trigger violations of various state and federal healthcare laws, including, but, not limited to, the Florida and Federal Anti-kickback Statutes and Stark law. Tangible and intangible assets can all be included in the sale of a physician practice however to avoid anti kickback issues, the final price must not overwhelmingly exceed the FMV of the practice. If the purchase price exceeds the FMV of the physician practice it will be a red flag for regulators. Regulators might interpret the sale to be disguised as an impermissible payment for patient referrals also knows as Patient-Brokering in Florida. You should always consult with a healthcare attorney to conduct an analysis of Stark law and Anti-Kickback Statutes before proceeding with the sale.

 

The sale of a physician practice may include a “competitive auction process”. Smaller physician practices don’t usually go through this auction process, but it is not uncommon for a larger practice with several offices and expensive medical equipment to go up for auction with a minimum reserve that must be met. All parties involved must agree to the terms and a price. A competitive auction includes an invitation of greater than 20 buyers to bid. Buyers in competitive auctions typically have a six-week deadline to submit a letter of intent to purchase at a tentative price pending exclusive due diligence performed by the buyer for 60-120 days.

 

Protecting your Practice

 

Physicians spend a significant amount of money and devote countless hours to building their practice. It’s not always easy to part ways with your practice, but prior to completing the sale you want to make sure that you and your practice are adequately protected. No matter the size of your practice, when you are entertaining offers from potential purchasers a well crafted Non-Disclosure Agreement (“NDA”) should be drafted by a healthcare attorney and signed by those potential purchasers. The NDA ensures that any documents or information that they receive during the negotiation process will be returned, destroyed, and kept confidential or else there will be a lawsuit for resulting damages. Also, the information gathered during the negotiation practice, such as trade secrets can’t then be used to directly compete with you. Once signed the potential purchasers are given access to secure online data rooms, which include financial statements, confidential information memorandum (CIM or pitchbook), and operational statistics.

 

What if you Own the Practice and Real Property?

 

Physicians that also own the practice facility need to prepare for the sale of both their practice and the practice facility. Alternatively, if the physician is interested in keeping the practice facility, he or she can lease the space to the buyer of the practice. In the leasing agreement, the physician may give the buyer and option to purchase the facility in an amount of time specified. If the selling physician wishes to remain employed by the purchasing party, remaining a landlord represents a conflict of interest that needs to be addressed. Therefore, the selling physician should contract for the sale of the practice facility with the buying party or an independent property management business.

 

Conclusion

 

The following is a list of Legal Considerations for sale of physician practice:

  • Beware of Fee Splitting and Kickbacks
  • Structure the Transaction in a legally permissible manner, such that it doesn’t violate any applicable healthcare or business laws.
  • Purchasers must conduct Due Diligence
  • Physicians must protect patient protected health Information (“PHI”)
  • Account for and protect against any Data/Information Breach
  • Resolve any existing contract disputes
  • Determine whether you can assign third party contracts
  • Negotiate the noncompetition clause
  • Negotiate an agreeable indemnification clause
  • Adhere to any termination Provisions
  • Consult a CPA to determine the tax risks
  • Transition the non-physician employees appropriately

 

In addition to these considerations, there are many other factors to consider before deciding to purchase or sell your practice. The sale of a practice can’t be completed over night and could take several months. The purchaser may have to obtain a Healthcare Clinic License and ensure that the transaction doesn’t violate Stark or meets one its exceptions. It’s up to you to determine whether the time is right to sell your practice. No matter the size of your practice you should always consult with an experienced healthcare attorney.

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This post was authored by Jamaal R. Jones, Esquire and Matt Lester of Jones Health Law, P.A. for more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com.

 

It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the information listed above.

 

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Legal Eligibility Requirements for the Terminally Ill to Receive Hospice Care (Video)

Hospice means a public agency or private organization primarily engaged in providing hospice care. Hospice care includes palliative care and they are used in unison by an interdisciplinary group to provide physical comfort and emotional and spiritual support to terminally ill patients and their families. Hospice care is focused on caring for the patient and not curing them.

Let’s face it, hospice is grim and the outlook is bleak, but that doesn’t mean that you shouldn’t be prepared for it. In order to do so, it is important to determine how the law may affect your loved one’s eligibility, patient rights, and duration of benefits for hospice care.

Legal Eligibility Requirements for the Terminally Ill to Receive Hospice Care

We’ve all heard the saying that dying and paying taxes are the only two guaranteed things in life. Taxes and death have another thing in common – extensions. A CPA may instruct you on how to obtain an extension to pay certain taxes. Hospice care is to dying as a CPA is to taxes. Placing a loved one in hospice may extend a loved one’s life by weeks or months. Let’s face it, hospice is grim and the outlook is bleak, but that doesn’t mean that you shouldn’t be prepared for it. In order to do so, it is important to determine how the law may affect your loved one’s eligibility, patient rights, and duration of benefits for hospice care.

Hospice Care

Hospice means a public agency or private organization primarily engaged in providing hospice care. Hospice care includes palliative care and they are used in unison by an interdisciplinary group to provide physical comfort and emotional and spiritual support to terminally ill patients and their families. Hospice care is focused on caring for the patient and not curing them. Hospice care can be in a standalone facility, a department within a nursing home, or in a hospital. However, it is not uncommon for the terminally ill to receive hospice care in their homes. Terminally ill patients are individuals that have a medical prognosis that his or her life expectancy is 6 months or less if the illness runs its normal course. Hospices provide specialized care for terminally ill patients, including, but not limited to, cancer patients, HIV/AIDs patients, and those suffering from severe functional limitations and advanced cognitive impairment (i.e. Alzheimer’s Dementia).

In 2014, an estimated 1.65 million patients received hospice care services, but that number is expected to rise. During that same period, only 7.6% of the patients in hospice care were Black/African-American compared to 8.4% in 2013. By comparison, White/Caucasians (Hispanics were reported as an ethnicity and not a race) accounted for 76% of patients in hospice care in 2014 compared to 80.9% in 2013.

Medicare and Other Payors

Hospice care is covered by Medicare, Medicaid, and most private insurers, but patients may also receive hospice care if they are destitute or unable to pay. States may elect to include hospice in their Medicaid programs. Medicare is by far the predominant source of payment for hospice care in the United States. As a result, Congress decided to enact the Medicare Hospice Benefit.

Hospice Care Eligibility

Hospice care is governed by the guidelines and requirements contained in the Code of Federal Regulations (See 42 CFR ch iv. Part 418) and the Sections 1102, 1861 and 1871 of the Social Security Act. The law states that in order to be eligible to elect hospice care under Medicare, an individual must be (1) entitled to Medicare Part A and (2) certified as terminally ill.

Providers determine whether you are terminally ill based on strict legal guidelines. The hospice must obtain written certification of terminal illness for each of the time periods listed below and only when they receive this certification can they submit the claim for payment. The certification requires that:

  • the provider state that patient’s life expectancy is 6 months or less should the illness run its normal course;
  • provide documentation to support the medical prognosis;
  • a brief narrative of the provider’s clinical findings;
  • a physician or nurse practitioner must attest in writing that he or she had a face-to-face encounter with the patient, including the dates of the visit; and
  • all certifications must be signed and dated by the physicians and include the benefit periods for the certification or re-certification.

Duration of Hospice Care

Initial treatment at a hospice is not provided in perpetuity until an individual succumbs to their illness, but care may be extended for successive periods. Federal law requires an individual to receive hospice care for (1) an initial 90-day period; (2) a subsequent 90-day period; or (3) an unlimited number of subsequent 60-day periods. The two 90 day periods must precede the 60-day period, and before the 60-day commences a hospice physician or hospice nurse practitioner must have a face-to-face encounter with the patient. This face-to-face encounter must be repeated for each successive period thereafter in order to determine whether the individual is still eligible for hospice care.

Patient Rights for Hospice Care

An individual or their representative may elect to receive hospice care if they properly file an election statement with that hospice, and the hospice must in turn file a Notice of Election (“NOE”) with its Medicare Contractor within 5 calendar days in order to receive payment during that period. A medical director must consult with the patient’s attending physician before a recommendation is made about admitting the patient to hospice. In making his recommendation, the medical director must consider:

(1) the diagnosis of the terminal condition of the patient;

(2) other health conditions, whether related or unrelated to the terminal condition; and

(3) any current clinically relevant information supporting all diagnoses.

If a patient elects to receive hospice care Medicare will not cover (a) treatment intended to cure the patient’s terminal illness and//or related conditions; (b) prescription drugs to cure the illness; and (c) room and board.

Patients or their representatives always have the right to revoke the election of hospice care at any time during the election period. To do so, the patient must draft a signed statement revoking their election and date when the revocation is effective. If the patient revokes their election they are not barred from seeking future hospice care if they are eligible.

Patients have the right to be informed of his or her rights, and the hospice must protect and promote the exercise of these rights. Patients have the right to:

  • receive effective pain management and symptom control from the hospice for conditions related to terminal illness;
  • involvement in her hospice plan of care;
  • refuse care or treatment;
  • chooser her attending physician;
  • confidential clinical record;
  • free from neglect, mistreatment, or any type of abuse;
  • receive information about the services covered under the hospice benefit; and
  • receive information about the scope of services that the hospice will provide and specific limitations on those services.

Hospice is a challenging and emotional time in your life if you are the patient or a family member. Be proactive and create an Advance Directive Plan that describes the care you want to receive and your wishes about continuing or withdrawing medical treatments during the final stages in your life. This is essential in the event that you become incapacitated and unable to speak. It will allow your family to spend those final precious days without the need to make difficult decisions on your behalf.