Legal Issues in Hospital-Hospice (and Other) Partnerships

1
Legal Issues in Hospital-Hospice (and Other)
Partnerships

• Brooke Bumpers, Esq.
• Hogan Hartson, LLP
• Washington, D.C.
• October 12, 2002

2
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

3
Current Structure
4
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)

5
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. 418.56
• Inpatient level of care not as restrictive as
  many hospices think, and often underutilized

6
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
  isnt a nursing home or residential care
  substitute

7
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
8
Hospices Arent 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

9
Any agreement between health care providers
(facilities or professionals) for the provision
of health care services should be set forth in
writing
10
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 - its
  an organic relationship
• Dont overlook or ignore each entitys or
  individuals regulatory obligations

11
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

12
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

13
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

14
Consultations (contd)

• 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 patients care, dont bill a consultation

15
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

16
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

17
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

18
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

19
Stark Law (contd)

• 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

20
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

21
How to Find Knowledgeable Counsel

• Referrals from other health care clients
• American Health Lawyers Association
• http//www.ahla.org/stateaffiliations/
• ABA Health Law Section
• http//www.abanet.org/health/hllinks/statelocal.h
  tml
• State Bar Association
• State Health Organizations (e.g., hospice,
  hospital, medical associations)

22
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, Dont Just Sit There,
  Look for an Alternate Route