CMS Issues Suggested Notice Of Election Statement

Following an OIG report on election statements in September, CMS has posted a suggested, but not mandatory, notice of election statement.

From inception of the benefit, hospices have been required to formulate their own notice of election.  Regulations require only that the election statement: (a) identify the hospice; (b) identify the attending physician chosen by the patient, if any; (c) acknowledge the palliative rather  than curative nature of hospice care; (d) acknowledge that Medicare benefits related to the terminal illness are waived during hospice care; and (e) state the current or prospective (not retroactive) effective date.  42  C.F.R. § 418.24(b).

In its report (discussed here), OIG surveyed more than 500 actual election statements, finding fault in various respects, including the failure to explain the palliative nature, the lack of a clear waiver, and, in some cases, small font size. OIG recommended that CMS promulgate a form notice of election.  And so, more than 30 years after the advent of the benefit, CMS has published a suggested form.

The form covers a full page and is in 10 point font, so it's a fairly busy document.  CMS focuses upon the palliative confirmation and waiver, as well as selection of attending physician.  CMS spends three lines noting that the election can only be prospective.

CMS' form does not address all of OIG's criticisms.

For instance, the proposed form does not state the patient's right to revoke hospice care.

The revocation right is an important, and often misunderstood, part of the hospice benefit.  Patients and families accepting hospice need to be assured that hospice is voluntary, and can be rescinded, freely and without penalty. Hospice do not control and cannot restrict revocations.  In fact, most hospices to try to counsel away from revocation when possible.

Still, CMS has long been suspicious of revocations, considering revocations as potential evidence of a "failure" of the benefit; or, worse, evidence that hospices avoid more expensive crisis care through discharge by patient revocation. CMS tracks live discharges in the PEPPER system, including by patient revocations, and reports out hospices that have higher than average discharges, potentially setting up audit processes.

With a suggested form now available, hospices should review their election forms and consider adopting the form, or significant parts of the form. If auditors decide to second guess a hospice form, it will be a valid point to note that the election is in the CMS suggested form; and, by contrast, the burden will be on the hospice to explain any deficiency where the CMS form is not in use.

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