Dying in America - An examination of policies that deter adequate end-of-life care in nursing homes

Journal of Law, Medicine and Ethics

Volumn 33, Issue 2, 2005, Pages 294-309

  Hoffmann, Diane E ^a   Tarzian, Anita J ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 24044545521     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00495.x     Document Type: Review

References (129)

1. See B. Gage et al., DHHS, Important Questions for Hospice in the Next Century (March 2000), available at 〈http://www.aspe.hhs.gov/daltcp/reports/ impques.pdf〉 (last visited March 28, 2005) (stating that "[a]lmost 18 percent of all elderly people who die are enrolled in hospice.");
2. see also Last Acts, Means to a Better End: A Report on Dying in America Today 16 (November 2002) at 〈http://www.rwjf.org/news/special/meansReport. pdf〉 (last visited March 28, 2005);
3. D. E. Campbell et al., "Medicare Program Expenditures Associated with Hospice Use," Annals Internal Medicine 140 (2004): 269-277, at 269 (stating that enrollment in the "Medicare hospice benefit increased from 9% in 1992 to 23% in 2000.")
4. A national study published in 1999 found that only 1% of nursing home patients were enrolled in hospice at any one time and that 70% of homes had no hospice patients enrolled. See A. C. Petrisek and V. Mor, "Hospice in Nursing Homes: A Facility-Level Analysis of the Distribution of Hospice Beneficiaries," Gerontologist 39 (1999): 279-290;
5. see also D. Porock et al., "A Profile of Residents Admitted to Long-Term Care Facilities for End-of-Life Care," Journal of the American Medical Directors Association 4 (2003): 16-22 (finding that in Missouri in 1999 only 30% of certified long term care facilities in the state provided hospice care to their residents).
6. J. Zerzan et al., Access to Palliative Care and Hospice in Nursing Homes, Journal American Medical Association 284 (2000): 2489-2494. The observation is based on North Carolina hospice data which found that in that state in 1997, 19% of deaths occurred in nursing homes and 22% in private homes but that during that year "only 13% of hospice enrollees were in nursing homes, while 87% were in private homes."
7. See North Carolina Division of Facility Servs., Annual Hospice Licensure Data Supplement (1997). Year 2000 data from the National Center for Health Statistics indicated a similar utilization pattern at the national level. Of all deaths in 2000, 22% were in nursing homes and 22.7% were in private residences. Of all deaths in that year of individuals 65 and older, 28.1% were in nursing homes and 21.2% were in a private residence.
8. Nat'l Ctr. for Health Statistics, DHHS, Table 309. Deaths by Place of Death, Age, Race, and Sex: United States, 2000, at 〈http://www.cdc.gov/ nchs/data/statab/mortfinal2000_work309.pdf〉 (March 21, 2003) (last visited March 29, 2005). Of those enrolled in hospice in 2000, 77% were in private residences and 18% were in health facilities (nursing home, hospital or other inpatient facility).
9. Nat'l Ctr. for Health Statistics, DHHS, Table 1. Number, percent distribution, and rate per 100,000 population of hospice care discharges by age, according to sex, race, and region: United States, 2000, at 〈http://www.cdc.gov/nchs/data/nhhcsd/hospicecaredischarges00.pdf〉 (February 2004) (Last visited April 19, 2005). Year 2002 data from the National Hospice and Palliative Care Organization (NHPCO) confirm these earlier findings. NHPCO reports that in 2002 about 25% of deaths occurred at home and 25% occurred in a nursing facility. In that same year, of those served by hospice, 57.9% died at home and 21.5% died in a nursing facility.
10. NHPCO Facts & Figures at 〈www.nhpco.org/files/public/ Facts%20Figures%20Feb04.pdf〉 (last updated February 2004) (last visited March 29, 2005).
11. According to the Medicare Payment Advisory Comm'n, Report to the Congress: Medicare Beneficiaries' Access to Hospice 5, at 〈http://www. medpac.gov/publications/congressional_reports/may2002_HospiceAccess.pdf〉 (May 2002) (last visited March 29, 2005), the percentage of hospice enrollees in nursing homes increased from 11% in 1992 to 36% in 2000. However, according to the NHPCO, in 2002, 21.5% of hospice patients died in a nursing home.
12. See NHPCO Facts & Figures, supra note 3. Yet, a more recent study by Campbell et al., supra note 1, indicated that 45% of hospice patients were nursing home residents. The exact percentage of hospice enrollees in nursing homes is not readily available as this information is not routinely collected as part of Medicare administrative data.
13. See T. Wetle et al., End-of-life in Nursing Homes: Experiences and Policy Recommendations, a report prepared for AARP available at 〈http://assets. aarp.org/rgcenter/health/2004_14_eol.pdf〉;
14. see also R. J. Buchanan et al., "End-of-Life Care in Nursing Homes: Residents in Hospice Compared to Other End-Stage Residents," Journal of Palliative Medicine 7 (2004): 221-232;
15. D. Parker-Oliver et al., "End-of-Life Care in U.S. Nursing Homes: A Review of the Evidence," Journal of American Medical Directors Association 5 (2004): 147-155;
16. M. B. Happ et al., "Advance Care Planning and End-of-life Care for Hospitalized Nursing Home Residents," Journal of American Geriatrics Society 50 (2002): 829-835.
17. See D. Parker-Oliver et al., Hospice and Nonhospice Nursing Home Residents, Journal of Palliative Medicine 6 (2003): 69-75.
18. See Medicare Payment Advisory Comm'n, supra note 4, at 6 (stating that certain diagnoses, such as congestive heart failure and myocardial infarction, "significantly predicted admission to hospice within two weeks of death"); see also Campbell et al., supra note 1, at 274 (stating that "entry to hospice in the last week of life was more prevalent among enrollees without cancer than those with cancer" 36% v. 23%); S. C. Miller, S. Weitzen, B. Kinzbrunner "Factors Associated with the High Prevalence of Short Hospice Stays," Journal of Palliative Medicine 6, no. 5 (2003): 725-736 (finding that in nursing homes, residents with dementia and diagnoses other than cancer or dementia were found to have hospice lengths of stay of one week or less).
19. See 42 U.S.C.A. § 1395f(a)(7) (West Supp. 2004).
20. See 42 U.S.C.A. § 1395x(dd)(3)(A) (West Supp. 2004).
21. 42 C.F.R. § 418.22 (b) (2003).
22. See 42 U.S.C.A. § 1395f(a)(7) (West Supp. 2004) (stating that a hospice physician and the patient's attending physician must certify a patient as "terminally ill" "in the first 90 day period" and that a hospice physician must certify the patient as terminally ill "in a subsequent 90- or 60-day period..."). When initially enacted, the Medicare Hospice Benefit included a 210 day limit. This included two 90 day periods and a third 30 day period. However, Congress repealed the limit effective for services furnished on or after January 1, 1990 in the Medicare Catastrophic Coverage Repeal Act of 1989.
23. See OIG, Hospice Patients, infra note 71, at I (stating that "[t]he repeal of the 210 day limit shifted the financial risk for patients living longer than 210 days from the hospice to Medicare...Before the repeal of the 210 day limit for hospice care, hospices would have to provide uncompensated care for patients who lived beyond 210 days and continued to require hospice care.") Id. at 11.
24. See 42 U.S.C.A. § 1395d(d)(1) (West Supp. 2004) (stating that payment for hospice care may be made "with respect to an individual only during two periods of 90 days each and an unlimited number of subsequent periods of 60 days each...").
25. See 42 U.S.C.A. § 1395d(d)(2)(A) (West Supp. 2004).
26. See Medicare Program; Hospice Care Amendments, 67 Fed. Reg. 70,363, 70,364 (November 22, 2002).
27. See 42 C.F.R. § 418.68(a) (2003); 42 U.S.C.A. § 1395x(dd)(2)(B) (West Supp. 2004).
28. Gage et al., supra note 1, at 5-6.
29. See 42 C.F.R. § 418.70 (2003); 42 U.S.C.A. § 1395x (dd)(2)(E) (West Supp. 2004). The initial hospice legislation required hospices to use volunteers and mandated "records on their use, cost savings, and the expansion of care and services achieved by doing so." Gage et al., supra note 1, at 6.
30. See 42 C.F.R. § 418.50 (2003). The MHB includes a number of benefits not available under other Medicare programs such as "non-IV therapy outpatient prescription drugs for pain relief and symptom management, homemaker services, and bereavement counseling for both the patient and their family members." Gage et al., supra note 1, at 8.
31. See 42 C.F.R. § 418.88 (2003).
32. See Centers for Medicare & Medicaid Services, DHHS, Program Memorandum: Medicare Program-Update to the Hospice Payment Rates, Hospice Cap, Hospice Wage Index and the Hospice Pricer for FY 2004 (CMS Pub. 60A, Transmittal A-03-057), at 〈http://www.cms.hhs.gov/manuals/pm_trans/a03057.pdf〉 (July 3, 2003) (last visited March 29, 2005).
33. See Tax Equity and Fiscal Responsibility Act (TEFRA) of 1982 § 122, Pub. L. No. 97-248, 96 Stat. 324, 356-63 (codified as amended in scattered sections of 26 and 42 U.S.C.).
34. See Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1874.
35. Those who are not Medicare eligible may have private insurance that covers hospice care or may be eligible for the Medicaid hospice benefit. The majority of state Medicaid programs cover hospice services. Medicaid requires that, if a state does provide hospice services, state programs include "at minimum" the same services covered by Medicare. See Gage et al., supra note 1, at 13.
36. See 42 C.F.R. §§ 418.80-418.88 (2003) (outlining core services that must be provided by the hospice).
37. See 42 C.F.R. § 418.56 (2003) (specifying terms for services provided by arrangement with other entities) and §§ 418.90-.100.
38. Centers for Medicare & Medicaid Services, Hospice Manual, Pub. 21, Rev. 55 § 204.2, at 〈http://www.cms.hhs.gov/manuals/21_hospice/hs200. asp〉 (Last modified on July 30, 2003) (last visited March 29, 2005).
39. T. J. Keay and R. S. Schonwetter, "The Case for Hospice Care in Long Term Care Environments," Clinics in Geriatric Medicine 16 (2000): 211-223.
40. See S. C. Miller et al., DHHS, Outcomes and Utilization for Hospice and Non-Hospice Nursing Facility Decedents, at 〈http://www.aspe.hhs.gov/daltcp/ reports.shtml〉 (March 2000) (last visited March 29, 2005). The study used the Minimum Data Set (MDS) and Medicare enrollment and claims data for the states of Kansas, Maine, Mississippi, New York and South Dakota.
41. I b i d.
42. See B. Jones et al., "Differential Utilization of Hospice Services in Nursing Homes," Hospice Journal 12 (1997): 41-57.
43. See id.
44. Id. at 45, citing A. Munley et al., "Humanizing Nursing Home Environments: The Relevance of Hospice Principles," International Journal of Aging & Human Development 15 (1982): 263-284.
45. 42 U.S.C.S. §§ 1395i-3 (a)-(h) and 1396r (a)-(h) (Law. CO-op. 2003).
46. National Hospice Organization, Nursing Home Task Force Report (hereinafter NHO Report) (1998): at 6.
47. Parker-Oliver, supra note 5 at 147, citing T. J. Keay, "Palliative Care in the Nursing Home," Generations 23 (1999): 96-98.
48. S. H. Johnson (forthcoming, manuscript on file with the authors)
49. M. B. Kapp, "Legal Anxieties and End-of-Life Care in Nursing Homes," Issues in Law & Medicine 19 (2003): 111, 128-134.
50. See Johnson, supra note 36; see also Zerzan, et al., supra note 3.
51. Gage et al., supra note 1 at 60.
52. S. C. Miller and V. Mor, "The Opportunity for Collaborative Care Provision: The Presence of Nursing Home/Hospice Collaborations in U.S. States," Journal of Pain & Symptom Management 28 (2004): 537-547.
53. See Kapp, supra note 37.
54. Gage et al., supra note 1, at 59.
55. "Chemical Restraints" is defined by the regulations as "any drug that is used for discipline or convenience and not required for treatment of medical symptoms." 42 C.F.R. § 483.13(a) (2004).
56. Medicare covers 100% of the first 20 days of skilled care. For days 21-100, patients are required to pay a coinsurance amount equal to one eighth of the Medicare inpatient hospital deductible. See 42 U.S.C.A. § 1395e (a)(3) (West 2003). For FY 2004 this was approximately $110.
57. Under certain limited circumstances, a nursing home resident may be eligible for both the Medicare Skilled Nursing Benefit (SNB) and the MHB. The resident may receive both at the same time if the SNB involves care for a non-terminal condition, e.g., a patient with breast cancer may receive speech therapy after a stroke. However, if the care is exclusively for treatment of a terminal condition, the resident may only receive one benefit at a time. For example, if the patient is terminally ill with congestive heart failure (CHF) and is returning to the nursing home after a hospital visit for treatment of an acute episode s/he may be eligible for both the SNB and the MHB for care related to the CHF. However, the patient may choose only one of these benefits for treatment of this condition. In some cases, there is not a bright line indicating whether or not treatment under the SNB is related to a terminal condition. For example, a cancer patient may experience a series of bone fractures. These may or may not be related to brittleness caused by the cancer or cancer therapy.
58. In 2002, the average nationwide private pay per diem rate was $142.56 for a semiprivate room and $167.82 for a private room. See Mature Market Inst., MetLife, Inc., MetLife Market Survey on Nursing Home and Home Care Costs 6, at 〈http://www.metlife.com/WPSAssets/ 83700920001018640690V1FNH%20HC%20Survey%202002.pdf〉 (April 2002) (last visited March 29, 2005).
59. See Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities - Update - Notice, 69 Fed. Reg. 45,775-45,822 (July 30, 2004).
60. The Omnibus Budget Reconciliation Act of 1989 provided that the hospice payment to nursing facilities "take into account the room and board furnished by the facility, equal to at least 95 percent of the rate that would have been paid by the State under the plan for facility services in that facility for that individual." Codified at 42 U.S.C.A. § 1396a (a)(13)(B) (West Supp. 2004).
61. CMS, "Medicare Skilled Nursing Facility (Non-Swing Bed) Utilization and Expenditure Calendar year 2002." (The figure does not include beds that "swing" between hospital and SNF levels of care.)
62. D. C. Grabowski, et al., Project HOPE; Recent Trends in State Nursing Home Payment Policies, Health Aifairs Web Exclusive, June 16, 2004 at 〈http://content.healthaffairs.org/cgi/content/full/hlthaff.w4.363/ DC1〉 (last visited March 29, 2005).
63. See S. C. Miller et al., DHHS, Use of Medicare's Hospice Benefit by Nursing Facility Residents, at Skilled Nursing Facility Care and Hospice Admission (March 2000), available at 〈http://www.aspe.hhs.gov/daltcp/ reports/nufares.htm〉 (last visited March 29, 2005).
64. I b i d.
65. See 42 CFR § 418.200 (2004).
66. See 42 CFR § 418.204(g) (2004).
67. See Medicare Hospice Manual "Centers for Medicare & Medicaid Services, Hospice Manual," Pub. 21, Rev. Sec. 418.202 (g) at 〈http://www.cms.hhs.gov/manuals/21_hospice/hs200.asp#_1_5〉 (last visited April 19, 2005).
68. See Memorandum from S. A. Pelovitz, Director, Survey and Certification Group, Center for Medicaid and State Operations to Associate Regional Administrator, DMSO, and State Survey Agency Directors, Promising Practices for Implementing the Medicare Hospice Benefit for Nursing Home (NH) Residents, (Ref: S&C-02-29), available at 〈http://www.cms.hhs.gov/medicaid/survey-cert/ sc0229.pdf〉 (May 10, 2002) (last visited March 29, 2005).
69. See "Centers for Medicare & Medicaid Services," Publication 100-7, State Operations Manual § 2082, available at 〈http://www.cms. hhs.gov/manuals/107_som/som107c02.pdf〉 (last modified June 18, 2004) (last visited March 29, 2005).
70. See 42 C.F.R. § 418.96 (2004).
71. OIG Advisory Opinion No. 01-20 (2001) at 〈http://www.oig.hhs.gov/ fraud/docs/advisoryopinions/2001/ao00_3.htm〉 (last visited April 19, 2005).
72. Gage et al., supra note 1, at 2.
73. See Office of Inspector Gen., DHHS, Medicare Hospice Beneficiaries: Services and Eligibility (OEI-04-93-00270, April 1998), available at 〈http://oig.hhs.gov/oei/reports/oei-04-93-O0270.pdf〉 (last visited March 29, 2005).
74. Letter from J. J. Mahoney, President, National Hospice Organization to the Hon. June Gibbs Brown, Inspector General, DHHS (January 29, 1998).
75. See L. Lagnado, "Rules Are Rules: Hospice's Patients Beat the Odds, So Medicare Decides to Crack Down," Wall Street Journal, June 5, 2000, at A1.
76. Section 1879 of the Act "provides protections from liability for charges for certain denied claims to beneficiaries who, acting in good faith, receive inpatient or outpatient services from Medicare Part A providers, or items or services from Medicare Part B suppliers which accept assignment." Health Care Financing Administration, DHHS, Program Memorandum: Hospice Provisions Enacted by the Balanced Budget Act (BBA) of 1997, at 3 (HCFA Pub. 60A, Transmittal A-98-27), at 〈http://www.cms.hhs.gov/medicaid/hospice/ a9827.pdf〉 (September 1998) (last visited March 29, 2005).
77. Ibid. Id.
78. See Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, Pub. L. No. 106-554, 114 Stat. 2763, § 322 (codified in 42 U.S.C. 1395f (a)). In addition, the amendment requires the Secretary of DHHS to "conduct a study to examine the appropriateness of the certification regarding terminal illness....In conducting such study, the Secretary shall take into account the effect of [the certification] amendment." Id.
79. See Medicare Program; Hospice Care Amendments, 67 Fed. Reg. 70,363-70,364 (November 23, 2002).
80. In addition, perhaps in response to this kind of press, in September, 2000, the outgoing head of the Health Care Financing Administration (HCFA) (now the Centers for Medicare and Medicaid Services [CMS]), sent a letter to 2,200 hospices saying she wanted to counter a "disturbing misperception" among those who care for the dying that patients who outlive the narrow reimbursement timeline set by Congress risk losing their coverage and being hit with severe financial penalties. In the letter, she proposed a pilot program in which hospices could obtain preauthorization from Medicare contractors for hospice care "in cases where the prognosis is difficult." Letter from Nancy-Ann DeParle, Administrator, Health Care Financing Administration, to Medicare Hospices (September 12, 2000), available at 〈http://aging.senate. gov/events/hr59ltr.htm〉 (last visited March 29, 2005).
81. See letter to Fred McDaniel, Hospice Care, Inc. from John W. Olds, RHHI Medical Director, Cahaba GBA (December 10, 2004) (stating that neither letters from CMS administrators, "nor CMS regulation, nor social security law establish that the physician's certification is the final arbiter of hospice eligibility" and that "determination of a 6 month life expectancy for a beneficiary who has been in hospice for many certification periods is more likely accurately made by reviewing that patient's trend toward decline, stability, or improvement and not by the LCD criteria."
82. See also LCD for Hospice - Determining Terminal Status for the Cataba fiscal intermediary at 〈http://www.iamedicare.com/Provider/policy/L13653. htm〉 (last visited March 29, 2005).
83. A March 2000 report prepared for DHHS by the Urban Institute stated: "According to anecdotal reports, access to hospice care in the nursing facility may have become more difficult since the...OIG...questioned the hospice lengths of stay and eligibility of beneficiaries residing in nursing facilities." Gage et al., supra note 1 at 1-2.
84. See Office of Inspector General, DHHS, Hospice Patients in Nursing Homes 6-8 (OEI-05-95-00250), at 〈http://oig.hhs.gov/oei/reports/oei-05-95-00250. pdf〉(September 1997) (last visited March 29, 2005) [hereinafter OIG, "Hospice Patients"] (finding that nursing home hospice patients in a sample of 22 hospices received fewer nursing and aide services from hospice staff than hospice patients living at home and that many of these services were also provided by the nursing home staff when hospice staff were not present). An initial draft of this report recommended that the Medicare hospice benefit be eliminated for patients living in nursing homes. See id. at ii.
85. See also Office of Inspector General, DHHS, Hospice and Nursing Home Contractual Relationships 4 (OEI-05-95-00251), at 〈http://oig.hhs.gov/oei/ reports/oei-05-95-00251.pdf〉 (November 1997) (last visited March 29, 2005) (finding that almost all hospices reviewed paid "nursing homes the same or more than what Medicaid would have paid for nursing home care if the patient had not elected hospice.");
86. Office of Inspector Gen., DHHS, Enhanced Controls Needed to Assure Validity of Medicare Hospice Enrollments (A-05-96-00023), at 〈http://oig.hhs.gov/oas/reports/region5/59600023.pdf〉 (November 4, 1997) (last visited March 29, 2005). The latter finding was based on 17 contracts between hospice organizations and nursing homes. The OIG found that 10 of 17 hospices paid the nursing home 100% of the Medicaid per diem, five paid 105%, one paid 120% and one paid less than 100%. See Gage et al., supra note 1, at 20. While these reports indicated some problems with the nursing home-hospice relationship, some commentators criticized the conclusions based on the very small sample size used in the studies, asserting that they were not adequate to allow generalization of results. See Memorandum from David F. Garrison, Principal Deputy Assistant Secretary for Planning and Evaluation, HCFA, to June Gibbs, Inspector General (July 22, 1997)
87. (reprinted in OIG, Hospice Patients, supra); see also infra text accompanying note 88.
88. See Publication of OIG Special Fraud Alerts: Fraud and Abuse in Nursing Home Arrangements With Hospices, 63 Fed. Reg. 20,415, 20,416 (April 24, 1998) [hereinafter OIG Special Fraud Alert].
89. See id.
90. See id.
91. See id.
92. OIG Advisory Opinion No. 00-3 (2000) at 〈http://www.oig.hhs.gov/ fraud/docs/advisoryopinions/2000/ao00_3.htm〉 (last visited March 29, 2005).
93. See discussion supra accompanying note 59.
94. While many respondents felt that this provision of the fraud alert negatively affected quality of care, it is not clear whether it may have also affected hospice revenue. In order to know whether hospices were actually providing these bridge services out of quality of care concerns or business concerns it would be helpful to know how much hospices expended on these free services compared to how much they subsequently earned from providing covered hospice services for those patients.
95. See supra, Reimbursement Issues, pp. 14-18.
96. Gage et al, supra note 1, at 4.
97. S. C. Miller, et al., "Factors associated with the high prevalence of short hospice stays," Journal of Palliative Medicine 6 (2003): 725-736.
98. See NHO Report, supra note 34.
99. Ibid. Id.
100. Institute of Medicine, Approaching Death: Improving Care at the End of Life, ed. M. J. Field and C. K. Cassel (Washington, D.C.: National Academy Press, 1997): at 84.
101. Others have advocated this approach as well referring to it as "Medicaring." See A. M. Wilkinson and J. Lynn, "Medicaring: an innovative model of financing and delivery of end-of life care," Critical Issues in Aging (1998). Available at 〈http://www.asaging.org/am/cia2/ mediCaring.html#annew〉 (last visited March 29, 2005);
102. see also A. Wilkinson and J. Forlini, "MediCaring: Quality End-of-life Care," Journal of Health Care Law & Policy 2 (1999): 286-297.
103. Institute of Medicine, supra note 83 at 28.
104. OIG Special Fraud Alert, supra note 72, at 20,416.
105. See Gage et al., supra note 1, at 27 (stating that the OIG's conclusions regarding average length of stay "are based on an extremely small sample and are most likely influenced by incidence-prevalence bias," and pointing out that "[e]specially in a nursing facility setting, prevalent cases represent more long-stay patients with chronic conditions than do incident cases.")
106. See Campbell et al., supra note 1, at 275. But see Medicare Payment Advisory Comm'n, Report to the Congress: New Approaches in Medicare 151 (2004), available at 〈http://www.medpac.gov/publications/congressional_reports/ June04_Entire_Report.pdf〉 (last visited March 30, 2005), at 142 (stating that a recent increase in hospice average length of stay, while the median remained the same, may be due to increased prevalence of nursing home residents in hospice care). Due to the difficulty of predicting life expectancy for many of the illnesses that are prevalent among the nursing home population, it is possible that there is a bimodal distribution of hospice lengths of stay in nursing homes - with a large group of shorter than average length of stay residents and a small group of greater than average length of stay residents. This latter group, although small, may increase the average length of stay while the median remains approximately the same.
107. See OIG, Hospice Patients, supra note 71, at 6.
108. S. C. Miller, "Hospice Care in Nursing Homes: Is Site of Care Associated with Visit Volume?" Journal of the American Geriatrics Society 52 (2004): 1331-1336.
109. Hospice staff providing care to patients in a nursing home must communicate regularly with both the patient's family and caregivers at the nursing facility and attend regular coordination of care meetings with nursing home staff.
110. See Social Security Act § 1819(c)(4), 42 U.S.C.A. § 1395i-3(c)(4) and 42 U.S.C.A. § 1396r(c)(4)(A)(West Supp. 2004).
111. These include the loss of a higher rate of reimbursement if a resident is also eligible for the Medicare skilled nursing benefit.
112. Institute of Medicine, supra note 84.
113. See Pub. L. 108-173, 117 Stat. 2066 (2003).
114. See A. Huskamp et al., "Providing Care at the End-of-life: Do Medicare Rules Impede Good Care?" Health Affairs 20, no. 3 (2001): 204-211, at 204; see also Institute of Medicine, supra note 84.
115. Nor is the benefit, which went into effect on January 1, 2005, likely to be widely utilized. According to hospice providers, CMS intends only limited use of the provision and will allow it only "when a patient or his physician contacts a hospice agency requesting the evaluation and counseling services."Moreover, CMS has stated that only physicians employed by a hospice can receive payment under the new benefit, "physicians under contract with the hospice are ineligible for the payments." The latter restriction may be a concern by CMS that "[p]ayments by hospice agencies to physicians or others in a position to refer patients...may implicate the Federal anti-kickback statute." Providers: CMS Intends to Make Limited Use of New Hospice Benefit, Inside CMS (December 16, 2002) available at 〈www.InsideHealthPolicy.com〉 (last visited March 30, 2005).
116. The suggestion that nursing homes be required to provide needed end-of-life care was recommended by HCFA in its comments to the OIG on its September 1997 report. In its written comments to the OIG, HCFA responded: "We suggest amending this recommendation to require nursing homes to provide needed end-of-life care; an important safeguard for beneficiaries who actually may need hospice care in a nursing home should the benefit undergo the proposed change....Your report correctly recommends the reduction or elimination of the hospice benefit in nursing homes, but without requiring nursing homes to provide end-of-life care we would be doing a disservice to our beneficiaries." OIG, Hospice Patients, supra note 71, at C-3. The memo further acknowledged that "while many hospice services may be capable of being provided by nursing home staff, many other hospice services (family counseling, bereavement counseling, etc.) probably are not." Id. at C-4.
117. See Medicare Payment Advisory Comm'n, supra note 89.
118. Ibid. Id.
119. Publication of OIG Special Fraud Alerts, 59 Fed. Reg. 65,372, 65,372 (December 19, 1994).
120. Ibid. Id.
121. See OIG, HHS, Fraud Alerts, Bulletins, and Other Guidance, at 〈http://oig.hhs.gov/fraud/fraudalerts.html〉 (last visited March 29, 2005).
122. See OIG Special Fraud Alert, supra note 72, at 20, 416.
123. See Gage et al., supra note 79 and accompanying text.
124. See, e.g., J. M. Teno et al., "Persistent Pain in Nursing Home Residents," Journal of the American Medical Association 285 (2001): 2081;
125. R. Bernabei et al., "Management of Pain in Elderly Patients with Cancer," Journal of the American Medical Association 279 (1998): 1877-1882;
126. B. A. Ferrell, "Pain Evaluation and Management in the Nursing Home," Annals Internal Medicine 123 (1995): 681-687;
127. A. M. Wagner et al., "Pain Prevalence and Pain Treatments for Residents in Oregon Nursing Homes," Geriatric Nursing 18 (1997): 268-272.
128. See Campbell et al., supra note 1, at 274.
129. S. C. Miller et al., "Government Expenditures at the End-of-life for Short- and Long-Stay Nursing Home Residents: Differences by Hospice Enrollment Status," Journal of the American Geriatrics Society 52 (2004): 1284-1292.