The Devil’s in the Details: Hospice Providers Face Claim Denials for Election Statement Technicalities

Since the Centers for Medicare & Medicaid Services (“CMS”) paused much of its audit activity during the COVID Public Health Emergency, the most recent rounds of Medicare audit activity may represent the first “look” at the new Election Statement forms that many hospice providers adopted under the new Medicare election statement requirements effective in October 2020. Unfortunately, these initial audit results from the Medicare Administrative Contractors (“MACs”) suggest that hospice providers and MAC reviewers may not necessarily see eye-to-eye on what information must be included in the new Election Statement.

In February 2024, Palmetto GBA, the Home Health and Hospice (“HHH”) MAC with jurisdiction for home health and hospice providers in the Southeast, Central, and Southwest regions, posted review results from several Targeted Probe and Educate (“TPE”) audit initiatives for July to September 2023. Although these TPE audits intended to focus on General Inpatient Care (“GIP”) and Hospice Length of Stay (“LOS”), Palmetto GBA’s review results surprisingly revealed that 25% of the denials in the LOS audits and 21% of the denials in the GIP audits included a finding that the hospice’s Election of Benefit form did not meet Medicare regulatory requirements. These recent findings are similar to the findings of CGS Administrators, another HHH MAC, whose hospice TPE audits from September 2022 through March 2023 also concluded that the Notice of Election forms were invalid in almost 32% of the claims reviewed (with missing forms identified in less than 5% of these cases).

One frequently cited Election Statement denial reason is the failure to include the contact information for the Beneficiary and Family Centered Care Quality Improvement Organization (“BFCC–QIO”). For hospice elections beginning on or after October 1, 2020, the Medicare regulations require hospice Election Statements to not only provide information on the BFCC–QIO and the patient’s right to immediate advocacy, but also to include the BFCC–QIO contact information. CMS’ Model Example Hospice Election Statement demonstrates one approach to how hospices can provide the contact information, by including sections for providers to fill in the name and phone number for the BFCC–QIO that services the hospice’s area.

For hospice providers facing a claim denial based on an Election Statement or Patient Notification of Hospice Non-Covered Items, Services, and Drugs Addendum deficiency, the financial impact may be exponential. A denial for an invalid Election Statement, which is typically obtained at the start of care, triggers a cascade effect that can potentially implicate reimbursement for claims and all benefit periods from the date of admission until the patient discharges or revokes the hospice benefit. For providers facing election statement denials for alleged technical reasons, such as the omission of contact information for the applicable BFCC-QIO, the Medicare appeals process can give some providers much-needed relief. In recent cases, we have had success representing several hospice providers overturning technical denials from zealous MAC reviewers related to alleged Election Statement issues. Such successes in the appeals process serve as a good reminder to all providers that a Medicare contractor’s interpretation of the Medicare requirements is not always the final word. Thus, providers facing claim denials for any reason should remember to evaluate and assess the validity of the given denial reasons against the regulatory requirements and other CMS guidance when evaluating the cost-benefit analysis of pursuing the Medicare appeals process.

In addition, all hospice providers that have not recently undergone an audit should periodically review their template admission forms, including but not limited to the Notice of Election and Patient Notification of Hospice Non-Covered Items, Services, and Drugs Addendum, to ensure compliance with all Medicare requirements.

For more information on hospice regulatory requirements or the Medicare appeals process, please contact AGG Healthcare attorneys Lanchi Bombalier or Charmaine Mech Aguirre.