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Health Care Reform at the End of Life: Giving With One Hand But Taking With The Other

by Kathy L. Cerminara, J.D., LL.M., J.S.D.


Tucked within the historic Patient Protection and Affordable Care Act (PPACA) are at least two relatively unheralded provisions that impact the end-of-life care. No, they do not establish death panels to determine which citizens no longer merit health care expenditures. Nor do they cut off health care coverage for the most elderly senior citizens. Rather, they relate to hospice care, which is primarily funded through Medicare. In addition to revising payment methodology and imposing quality reporting measures, the legislation on one hand opens the door to easing patients’ paths toward election of hospice care. On the other hand, however, it also imposes a new requirement on hospice recertification. The result may be that Congress has given with one hand while taking with the other.
A Concurrent Care Demonstration Project
The sense in which Congress has given with one hand is of great importance. In section 3140, the PPACA authorizes a three-year-long Medicare Hospice Concurrent Care demonstration project. In other words, beginning as soon as the Secretary of Health and Human Services can establish the program, as many as 15 hospice programs nationwide will be participating in a study to determine whether patients benefit when Medicare authorizes payment for receipt of concurrent curative treatment and hospice care.  Currently, patients must forego curative treatment before Medicare will fund hospice services, but the demonstration project will allow the government to determine whether patient care, quality of life and cost-effectiveness improve if patients need not make such a choice. (Another section of the PPACA, 2302, simply amends current law to eliminate the requirement of such an election on behalf of children, through Medicaid and CHIP programs.)
The current requirement that patients forego curative treatment before Medicare will fund hospice services is consistent with the reason that Medicare initially began covering hospice services. Hospice became a Medicare-covered benefit in 1983 primarily because Congress saw it as cost-effective, and, generally speaking, foregoing expensive curative treatment in favor of less-intensive hospice services will reduce overall costs.
The trade-off does not work as smoothly as one might expect, however, and in fact studies have demonstrated that it causes confusion likely resulting in health care professionals’ failures to recommend hospice as soon as they could. In many important respects, the tradeoff is based upon a false dichotomy, since some treatments are curative in certain situations but simply palliative in others. Moreover, the effect of the forced choice is to require patients to have accepted the inevitability of death before accessing services that, in fact, could be of immense help long before that time. Additionally, asking patients from certain cultures (Hispanics and African-Americans in particular) to choose comfort care to the exclusion of life-prolonging treatment may be incongruent with their culture and beliefs. As a result, the imposed tradeoff is a barrier to access even for those who want to experience the benefits of hospice, such as pain control and symptom management, social and emotional support and spiritual services.
The demonstration project the PPACA authorizes could show that eliminating the dichotomy between curative and palliative care, as some scholars and policy analysts have proposed,[1] improves patient care and quality of life. Moreover, accessing hospice services while still clinging to some hope through curative treatments could actually result in fewer health care expenditures overall. The demonstration project may, and some believe is likely to, reveal that patients do not have to make a drastic choice, but can instead ease into acceptance of hospice services, are likely to discontinue futile curative treatments earlier than they might have otherwise. The result would be that fewer resources go toward expensive last-chance treatments overall.
Required Face-to-Face Visits for Recertification
If Congress “gave” with that hand, however, it seems to have “taken” with the other in the PPACA. Section 3132 of the PPACA imposes tighter controls on hospice recertifications beginning on January 1, 2011. The general rule is that a patient must be declared to be terminally ill, defined as being within six months of death if the disease takes its usual course, to be certified into hospice care. This does not mean, however, that a patient is limited to receiving six or fewer months of hospice benefits. Rather, a patient may be recertified for continued hospice care as long as he or she continues to be terminally ill.   Beginning on January 1, 2011, such recertifications may occur only after face-to-face encounters between patients and hospice physicians or nurse practitioners, and there will be medical review of recertifications in hospices with especially high rates of recertification.
As one might expect, this change stems from cost concerns. In 2008, the Medicare Payment Advisory Commission (MedPAC) expressed concerns about the potential for fraud and abuse among hospices, especially for-profit ones. It recommended, and in 2009 the Centers for Medicare and Medicaid Services (CMS) promulgated, regulations that increased the amount of documentation required for initial certifications and subsequent recertifications of patients as terminally ill. MedPAC also recommended, but CMS declined to promulgate, regulations that practitioners demonstrate that they had actually visited patients when recertifying their terminal conditions. Congress has now imposed that requirement, thus taking the decision whether to do so out of the administrative realm.
Congress undeniably has a valid purpose -- eliminating fraud and abuse and thus saving money – for its attempts to ensure that all certifications and recertifications are valid. Testimony at MedPAC hearings and statistics in the MedPAC report on these issues support a conclusion that many in the industry are gravely concerned about lack of accountability for certifications and recertifications. While being lenient in certification and recertification benefits patients, resources are limited, so there must be a system in place to guard against fraudulent certifications and recertifications.
Congress should also, however, be mindful of the law of unintended consequences. Testimony before MedPAC and comments CMS received on its proposed regulations revealed concerns about the burdens imposed on practitioners by requiring face-to-face encounters for recertification. Especially in rural areas, it is not always easy or practical to visit all patients in person in order to recertify a condition that is indisputable based on prior experience with the patients and their medical records. Requiring visits under those circumstances likely imposes costs over and above the value of the additional reliability of the recertifications. Additionally, comments to CMS indicated some concern about whether physicians and nurse practitioners would become uncomfortable recertifying patients who hadn’t shown noticeable signs of decline, in case recertification of such patients would be questioned during any medical review that occurred. It is unclear that evidence of fraud and abuse attributable to improper recertifications actually outweighs the possible chilling effect of the new requirements.
Concluding Thoughts
In conclusion, then, this commentary has zeroed in on two provisions affecting hospice care that are buried among the historic changes the PPACA made to America’s health care system overall. In one of the provisions, the authorization of a Medicare Hospice Concurrent Care demonstration project, Congress may be paving the way for another historic change. Should the demonstration project support the arguments of proponents of concurrent curative treatment and hospice care, it could result in elimination of a regulatory requirement that currently prevents some patients from accessing hospice care as soon as they could. On the other hand, however, Congress has enacted into law a requirement that CMS had declined to impose regulatorily and that could chill hospice recertifications. Predicting death is not an exact science; some would say, only half-jokingly, that the only time a physician can determine with certainty the beginning of the “six-months-to-live” period is to wait until the patient dies and count backward from the date of death. Inevitably, then, many patients appropriately will be recertified for hospice care. Imposing a barrier negatively impacting practitioners’ ability or willingness to recertify could result in less hospice care for patients who qualify for and could benefit from it.

[1] See Alina M Perez & Kathy L. Cerminara, La Caja de Pandora:   Improving Access to Hospice Care Among Hispanic and African-American Patients, 10 Hous. J. Health L. & Pol’y 101 (forthcoming 2010); Kathy L. Cerminara, Pandora’s Dismay: Eliminating Coverage-Related Barriers to Hospice Care, __ Fla. Coastal L. Rev. __ (forthcoming 2010); Alexi A. Wright & Ingrid T. Katz, Letting Go of the Rope-Aggressive Treatment, Hospice Care, and Open Access, 357 N. Engl. J. Med. 324, 325-27 (2007); Brad Stuart et al., CHOICES: Promoting Early Access to End-of-Life Care Through Home-Based Transition Management, 6 J. Palliative Med. 671, 671 (2003); Haiden A. Huskamp, Providing Care at the End of Life: Do Medicare Rules Impede Good Care?, 20 Health Affairs 204, 211 (2001).


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