Redundancy Key to Avoiding Hidden Red Flags in Hospice Election Statements

Building in redundancies around patient admission processes may help hospices withstand regulatory scrutiny, according to legal experts in the space.

Patient eligibility is a frequent focus of hospice audits as regulators sharpen oversight in the industry.

In recent years, the U.S. Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health & Human Services Office of the Inspector General (HHS-OIG) have taken a closer look at providers.


This means it’s “critically important” that hospices have solid election statements that can stand up against regulatory questions, according to Andrew Brenton, hospice attorney at the law firm Husch Blackwell. Modeling this documentation after CMS’ guidelines may be a key to avoiding scrutiny, he said.

“Your election statement should hold up against audits and other types of regulatory scrutiny,” Brenton told Hospice News. “We typically suggest that hospices follow the hospice election model form from CMS, because if you use language that CMS has essentially vetted, then Medicare contractors are going to be hard-pressed to invalidate an election statement. But this may be more complicated in practice.”

Next year, the OIG is planning a nationwide audit of hospice eligibility that will focus on patients who did not have a hospitalization or emergency department visit prior. In recent years, the agency collected Medicare claims and associated documentation, finding issues related to beneficiary eligibility.


“Beneficiary eligibility has always been a concern for hospice,” an OIG spokesperson previously told Hospice News.

Much of the regulatory, and sometimes legal, actions taken by CMS or OIG are audits spurred by inaccurate or incomplete documentation of a patient’s hospice certification, with providers facing Medicare claim denials, slowed payments or lost revenue as a result.

Technical documentation errors on hospice election forms are among the common red flags catching the eyes of regulators and resulting in these claim denials, according to Meg Pekarske, partner on Husch Blackwell’s hospice and palliative care team.

“We deal with a mind-bending number … of technical problems, and we’ve probably seen every parade of horrible out there,” said Pekarske during a recent Husch Blackwell podcast.

Technical errors may be the most common, yet fixable, areas for improvement that hospices can tackle, according to Emily Solum, another partner at Husch Blackwell. Part of addressing these involves engaging and educating staff on the importance of the patient admission process, she said.

“[These] things are very, very easy to miss,” said Solum during the podcast. “It’s important that staff who are admitting patients understand and have a process in place to double check that they’re filling out the form with the patient and not overlooking things. There should be processes in place to reduce errors to the greatest extent possible.”

Building in redundancies around clinical and back-office admission processes can help hospices save time and money in the long run, said Pekarske.

This is again where a hospice’s election statement can come into play. Hospices can instill a system of checks and balances for staff to avoid common technical errors and ensure that election statements can be backed, according to Pekarske.

Creating redundancies outside of the election form can be just as important to curbing documentation and technical errors, said Brenton.

“Even if you have the best documentation out there, there can still be errors in how forms are completed by staff or by the patient,” Brenton told Hospice News. “A different way of proactively trying to address compliance issues is to create redundancies outside of the election form as you put things in place around the admission process, so that in the event there is something wrong with how the election statement is spelled out you might have some arguments to rely on.”

This can include providing patients with consent forms that are separate from the election statement and include more information about their medical condition, prognosis, and care plan, as well as explanations around related and unrelated services and drugs, according to Brenton.

“If you have some redundancies built in elsewhere, you might be in a better position to argue on the back end that you were compliant with content requirements,” said Brenton. “It’s advisable to keep other elements outside of the election statement separate and really keep it focused on what’s required. The hospice by law is responsible for determining what’s hospice related and what’s not.”

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