On October 1, 2014, CMS revised its attending physician requirements, setting another potential trap for the unwary.  42 C.F.R. 418.24 [Election of Hospice].

While statute and regulation have long required both the attending physician and hospice medical director to certify initial eligibility, CMS has now tightened regulation around identification and change of attending physician.  The natural result of this change will be a more stressful hospice election process for new patients and increased audit risk for hospices.

The new rule requires the patient to sign and date a form identifying their attending physician; and, it requires an additional form when the attending physician is changed.  See 79 Fed. Reg. 50479.  42 C.F.R. 418.24(b)(1) now “require[s] that the election statement be modified to identify the standing physician chosen by the patient and to include language that the patient acknowledges that the attending physician was his or her choice.”  79 Fed. Reg. 50501.  CMS’ stated motive in changing the requirement was to ensure that “the identity of the attending physician would be the result of the patient’s free choice.”  79 Fed. Reg. 50479.  However, the new requirement entails many practical difficulties.

When a patient elects hospice, it is often as a result of a transition of their medical care – for instance, from a recent, significant hospitalization.  The role of the hospitalist significantly complicates the transition to hospice.  Generally, hospitalists specialize in caring for hospitalized patients and they do not have a practice where they routinely care for patients on an ongoing basis.  This creates significant problems:  (a) hospices have difficulty reaching the hospitalist for certifications and orders; (b) the hospitalist likely has no interest in “following” the patient on an ongoing basis, (c) the hospitalist has no plans or interest in consulting with the IDT to direct and determine the patient’s medical care.

During such a transition, it is also common for patients to lose track of their prior attending physician (who may not make rounds at the hospital).  The circumstances and nature of such transitions are not hospice-driven (eg, specialization of service by doctors groups).  And, both hospitalists and recently-detached family practice physicians (who are not experts on hospitalization, discharge planning, or hospice) are often not available or are unwilling to certify patients for hospice.

As a result, during such a transition, to receive hospice care, a patient must often select a new attending physician.  This can be difficult for a patient, especially one who (like many of us) otherwise has had a longstanding relationship with a family practice physician.  In essence, the new requirement forces patients to directly confront (by the formal process of signing a form) an additional barrier to hospice – the potential dissolution of their primary care relationship.

If CMS feels that patients are being forced into hospice unwittingly, this new regulatory barrier could stem such action.

But, it will also deter patients that are otherwise fully-eligible for hospice by requiring them to expressly sever prior relationships.

With regard to the documentation requirement, CMS suggests the following:

“The hospice should document, in the medical record, situations where the attending physician is no longer willing or available to follow the patient. The hospice can then inform the patient or representative that he or she may choose someone else to serve in that role. In making such a choice, the patient or representative should be informed that he or she can choose a physician or a nurse practitioner as the attending physician, and that this individual could be from the community or from the hospice.”

79 Fed. Reg. 50480.   Similar to the election statement, this can be a daunting prospect for patients.

Hospices can manage this transition to some degree by explaining to the patient that the attending physician is an important role, that they should choose someone who will remain interested in their care, and that hospitalists will not often continue to follow patients post-discharge.  If patients lack a good choice, then patients can be advised that hospice medical directors can serve in that role (especially given their special experience in caring for patients toward end of life).

For older Americans, these heightened attending physician requirements constitute a barrier to entry to hospice, a clever way of rationing hospice care.  Or, as CMS often sees things, reducing the annual expenditure on hospice (also known as “protecting the Medicare Trust Fund”).

In addition to adding a barrier to hospice utilization, the new regulation will likely become yet another tool in CMS’ audit arsenal.  In short, where a hospice fails to obtain required documentation, CMS auditors may seek to recover all payment for services.  CMS increases the potency of this audit tool when it provides that the “effective date of the change in attending physician cannot be before the date the statement is signed.”  42 C.F.R. 418.24(f)(3).  The sole purpose here is to set up a strict rule and, consequently, a strict audit tool.

As a result, hospices can now expect to face yet another technical documentation audit – the attending physician identification audit.  In this era of tight CMS budgets, competing audit structures, and natural growth of Medicare, hospices should probably expect to see attending physician probe edits and perhaps even ZPIC audits quite soon.

Hospices should carefully review their policies and documentation to ensure that where an attending physician is changed, it is carefully explained and fully documented.