Legal Issues in Hospital- Hospice (and Other) Partnerships Brooke Bumpers, Esq. Hogan & Hartson, LLP Washington, D.C. October 12, 2002

Multiple Needs May Require Multiple Structures/Partnerships Hospice (home care or inpatient unit) Hospital/SNF (for inpatient care) Home Health and/or Nursing Service Physician (NP) Consultation Service Home Visits Palliative Consult Clinic Hospitals

Current Structure

Federal and State Legal Issues Must be Considered What types of services may be provided (and billed for) by what types of entities Facility or Professional licensure/certification Anti-kickback and other fraud & abuse concerns (not just federal law issue!) Corporate Practice of Medicine and Certificate Of Need (state law only)

Medicare Hospice Benefit Short-Term Inpatient Care Hospice must have agreement with hospice inpatient facility, hospital or SNF Specific requirements for agreements spelled out in 42 C.F.R. § Inpatient level of care not as restrictive as many hospices think, and often underutilized

Medicare Hospice Benefit Short-Term Inpatient Care As necessary for pain control or acute or chronic symptom management For medication adjustment, observation or other stabilizing treatment For patients whose home support has broken down, if needed care can no longer be furnished in the home setting ·Caveat: Hospice inpatient benefit isn’t a nursing home or residential care substitute

Hospices remain responsible for the professional management of hospice patients’ care even when care is furnished in an inpatient setting, SNF or by another contracted provider

Hospices Aren’t Limited to Providing Only “Hospice Care” Medicare – must be “primarily engaged” in providing hospice care Primarily engaged  exclusively engaged May want or need to create another corporate entity separate from your Medicare certified hospice

Any agreement between health care providers (facilities or professionals) for the provision of health care services should be set forth in writing

Practical Advice for Partnerships/Collaborations Take the time to draft a detailed, accurate agreement Have (or at least be) your own advocate Use the negotiation process as a tool to flesh out the parties’ goals, roles, concerns Regularly review and update your agreement - it’s an organic relationship Don’t overlook or ignore each entity’s or individual’s regulatory obligations

Agreements Should Address: What the Parties are Agreeing to and Who is Responsible for What Financial Arrangements and Billing Medical Records and Confidentiality Insurance and Indemnification Representations and Warranties Remedies for Breach and Termination

Corporate Practice of Medicine Purely a State law issue (as is CON) Intent is to prevent corporate or other non-physician control over the practice of medicine, but details vary by state Nonexistent in some States, still strongly enforced in others May dictate corporate structure and how services are provided

Billing for Consultations “Consultations” have a specific definition for coding/billing purposes Must be requested by another physician or other appropriate source Request should be documented in the medical record

Consultations (cont’d) Consultant prepares a written report for the referring physician Consultant may initiate diagnostic or treatment services If the “consultant” starts managing some aspect of the patient’s care, don’t bill a consultation

Concurrent Care Billing by more than one physician in the same specialty for the same patient over a short period of time (e.g., same day) Can trigger claims review Good documentation by both physicians is important Helpful if physicians have different specialty codes or bill different diagnoses

Federal Anti-Kickback Law Prohibition Offer or payment/solicitation or receipt Of any “remuneration” To induce someone to refer a patient or to purchase, order or recommend Any item or service that may be paid by a Federal Health Care Program Many States have their own such laws

Personal Services Safe Harbor Signed, written agreement for a period of at least one year Total payment set in advance, at fair market value, and not taking referrals into account Specifying services and the length, payment for, and schedule of service intervals

“Stark Law” Prohibition on Physician Self-Referral Prohibits physicians from making referrals to an entity for designated health services for which payment may be made by Medicare or Medicaid if the referring physician has a financial relationship with the entity, unless an exception applies

Stark Law (cont’d) Hospice is not a “designated health service”, but home health, inpatient and outpatient hospital services, DME and certain therapy services are There are many exceptions, including bona fide employment relationships and personal service arrangements that meet specific requirements

Knowledgeable Legal Counsel is Essential Fraud & abuse analysis is very fact- specific who are the parties, how are they related, what are they doing, why are they doing it, where does the money flow and how is it calculated The more relationships you have, the more complex the analysis Federal and State issues

How to Find Knowledgeable Counsel Referrals from other health care clients American Health Lawyers Association ABA Health Law Section State Bar Association State Health Organizations (e.g., hospice, hospital, medical associations)

Be Creative and Just Do It Palliative Care Needs Vary and So Do the Means of Providing It Good Palliative Care Can Be Provided Under the Current Health Care System When You Hit a Roadblock, Don’t Just Sit There, Look for an Alternate Route