CMS Pub. 100-02, ch. 9, § 80

Effective January 1, 2005, section 512 of the MMA amends section 1812(a)(1)(5) of the

Act which, provides for a one-time payment to be made to a hospice for evaluation and

counseling services furnished by a physician who is either the medical director of or

employee of a hospice agency. In order to be eligible to receive this service, a

beneficiary must:

• be determined to have a terminal illness (which is defined as having a prognosis

of 6 months or less if the disease or illness runs its normal course;

• not have made a hospice election, and

• not previously received the pre-election hospice services

• Services under this benefit are comprised of:

• evaluating the individual’s need for pain and symptom management;

• counseling the individual regarding hospice and other care options, and may

include;

• advising the individual regarding advanced care planning.

The services that comprise this benefit are currently available through other Medicare

benefits. For example, evaluation and counseling are often provided by an individual’s

physician as well as by other sources such as discharge planners, case managers, social

workers and nonphysician providers. Therefore, this service may not be reasonable and

necessary for all individuals. To the extent that beneficiaries have already received

Medicare-covered evaluation and counseling with respect to end-of-life care, the hospice

pre-election benefit would seem duplicative. However, if a beneficiary or the

beneficiary’s physician deem it necessary to seek the expertise of a hospice medical

director or physician employee, this benefit is available to assure that a beneficiary’s end-of-life options for care and pain management are addressed.

Since the decision to utilize this benefit is determined by the beneficiary or the

beneficiary’s physician, the evaluation and counseling service may not be initiated by the

hospice, that is, the entity receiving payment for the service. Payments by hospice

agencies to physicians or others in a position to refer patients for services furnished under

this provision may implicate the Federal anti-kickback statute.

If the beneficiary’s physician is also the medical director or physician employed by a

hospice or possesses expertise in the provision of palliative or hospice care, that

physician already possesses the expertise necessary to furnish end-of-life services and

will have received payment for these services through the use of evaluation and

management codes.

For example:

A thoracic surgeon has diagnosed a patient hospitalized in an acute care facility, with

end-stage lung cancer with a prognosis of 6 months or less, if the disease runs its normal

course. The patient has been informed of this diagnosis. The physician, with the

patient’s concurrence, requests a consult by the hospital’s palliative care team. The team

meets with the patient, discusses options, evaluates the patient’s pain and symptoms, and

makes recommendations including hospice care. Utilization of the evaluation and

consultation benefit would be duplicative.

A patient with terminal cervical cancer has been receiving aggressive curative care as an

outpatient, which has not been successful. The patient’s physician, nurse and social

worker have discussed the possibility of hospice. The patient decides to seek information

from a hospice. Utilization of the evaluation and consultation benefit would be

appropriate.

Hospice A receives referrals from various physicians and facilities that the patients are

certified as having a terminal illness and wish to elect the hospice benefit. Hospice A

utilizes the evaluation and consultation benefit for every patient as a preliminary

evaluation, prior to the actual election of the benefit. Utilization of the evaluation and

consultation benefit would not be appropriate.

Nursing home B contacts Hospice C providing them with a list of patients that can be

certified as having a terminal illness. The medical director of Hospice C makes “rounds”

on these patients, many of whom are unable to communicate and whose symptoms are

being managed well. Utilization of the evaluation and consultation benefit would not be

appropriate.

A patient is being treated by a physician for end-stage COPD. The patient is

experiencing distressing symptoms, but has not been able to make any definitive decision

as to advanced directive decisions. The patient’s physician feels that the expertise of the

medical director in Hospice D would be able to provide recommendations as to symptom

management and advance directive decisions. The medical director provides the

evaluation and consultation services. The patient does not elect the hospice benefit, but is

able to make determinations as to his wishes and the physician has recommendations to

assist in his provision of care. Utilization of the evaluation and consultation benefit would

be appropriate.