Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

The HHS Office of Inspector General (OIG) recently announced its Office of Audit Services plans to conduct a nationwide review of hospice eligibility, focusing on those Medicare hospice beneficiaries who haven't had an inpatient hospital stay or an ER visit in certain periods prior to their start of hospice care. 

OIG expects to complete this nationwide audit in Fiscal Year 2023 (ending September 2023), though this date could slip. OIG announced that its work from the last few years on compliance audits of individual hospice providers “identified findings related to beneficiary eligibility,” and presumably concluded that a nationwide audit was advisable. 

What will this nationwide audit look like? 

The nationwide audit likely will entail requests to hospices nationwide for individual Medicare hospice claims and supporting hospice records. We expect that those hospice records will then be reviewed by an Independent Medical Review Contractor (IMRC) contracted by OIG.

What is unclear is whether OIG will permit or solicit any input from the hospices on the IMRC’s clinical eligibility findings. OIG did solicit such input on its preliminary draft report in connection with its hospice compliance audits. 

What’s Noteworthy? 

OIG’s focus on patients admitted to hospice without a preceding hospitalization or ER visit would suggest this audit may focus to a large degree on the beneficiary population with diagnoses such as dementia, chronic kidney failure, and heart disease (i.e., those who may not frequently require an ER visit or hospitalization).

OIG’s audit announcement accurately notes the following:

To be eligible for hospice care, they [patients] must be entitled to Medicare Part A and be certified as being terminally ill. The certification of terminal illness for hospice benefits shall be based on the clinical judgment of the hospice medical director or physician member of the interdisciplinary group, and the beneficiaries' attending physician, if they have one, regarding the normal course of their illness.

It remains to be seen how much weight and deference, if any, OIG and its IMRC will place on the contemporaneous clinical judgment of the hospice physicians and attending physicians. In the 11 previous hospice provider compliance audits completed in 2020 and 2021, it was not at all apparent that OIG and its IMRC placed significant weight on the hospice physicians’ and attending physicians’ clinical judgment reflected in the hospice certifications of terminal illness.