How to Handle Patients Who Seek Acute Care without Contacting Hospice First

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By Elizabeth E. Hogue, Esq.

Many hospices have encountered situations like the following:

A Medicare patient was admitted to a Medicare-certified hospice. The patient had cancer of the lung with accompanying difficulty breathing and other symptoms. Upon admission to the hospice, the patient was told not to go to the hospital without calling hospice staff first. On at least two occasions, the patient called "911" and was transported to the hospital for treatment of signs and symptoms related to the patient's terminal illness without calling hospice staff first. On both occasions, the patient was admitted to the hospital. Hospice staff members, including social workers, counseled with the patient and the patient's family regarding the need to call hospice before going to the hospital.

This case raises the following questions:

Under the circumstances describe above may the hospice treat the patients' trips to the hospital and admissions to the hospital as revocation of the election of the Medicare hospice benefit?
If not, must the patient sign a revocation form in order to revoke election of the Medicare hospice benefit?
If the patient refuses to sign a form revoking election of the Medicare hospice benefit, is the hospice responsible to pay for the services provided to the patient by the hospital?
Is the hospice responsible for the costs incurred by the patient at the hospital if the hospice has a contract with the hospital? If the hospice does not have a contract with the hospital?
If the patient will not sign a form revoking election of the Medicare hospice benefit and continues to receive services related to treatment of signs and symptoms of the patient's terminal illness without calling hospice staff first, what other options does the hospice have?
Is it appropriate to treat a telephone call to "911" by the patient/patient's family member as revocation of election of the Medicare hospice benefit?

In response to the above questions, staff at the Centers for Medicare and Medicaid Services (CMS) stated as follows:

Medicare-certified hospices may not treat visits to the hospital for treatment of signs and symptoms of the patient's terminal illness as revocation of the election of the Medicare hospice benefit even though those services were not arranged by the hospice.

The patient must sign a form revoking election of the Medicare hospice benefit in order for revocation to be effective.

If the patient refuses to sign the revocation form because the patient does not wish to revoke election of the benefit, the hospice is not necessarily responsible to pay the hospital for services provided to the patient whether or not the hospice has a contract with the hospital. A definitive determination about payment may, however, be made on a case-by-case basis. Hospices may want to consider circumstances like the necessity of the hospital care and whether the patient went to a hospital that the hospice had arrangements with and make decisions based upon this information.

Hospices should take into account that patients who elect the hospice benefit become totally dependent upon the hospice for all of his or her care related to the terminal illness.

If the patient continues to receive services without calling the hospice first that are not arranged for by hospice after appropriate continuing intervention by social work and other hospice staff, the hospice may wish to consider discontinuing services to the patient. CMS is considering the possibility of establishing regulations that govern discontinuation of services "for cause."

A proposed rule was published in the Federal Register on November 22, 2002.

Medicare-certified hospices may not treat telephone calls to "911" as revocation of the patient's election of the Medicare hospice benefit.

Hospice staff members are regularly confronted with a number of complex issues. It is important to get as much clarity as possible regarding these issues because the legal and ethical implications are significant.

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