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.

Jamaal Jones


This post was authored by Jamaal R. Jones, Esquire (Partner) of Jones Health Law, P.A. where we provide "On-Call Legal Services to Healthcare Professionals". For more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com

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