Is it time for another lawsuit? Advocating to change the Medicare Hospice Benefit eligibility requirements

By now most everyone has heard about the proposed settlement of a nationwide class-action lawsuit against Medicare that would do away with the requirement to show a likelihood of medical or functional improvement before Medicare would pay for skilled services such as physical therapy.

This has led me to wonder if it is time to rewrite the Medicare manual to do away with the requirement for Hospice patients to:

• Have a life expectancy of 6 months or less if the illness runs its normal course 
• Sign a statement choosing hospice care instead of routine Medicare covered benefits {i.e. curative care} for their terminal illness.

The case for the Medicare skilled nursing benefit lawsuit (according to the New York Times):

• Federal officials agreed to rewrite the Medicare manual to make clear that Medicare coverage of nursing and therapy services “does not turn on the presence or absence of an individual’s potential for improvement,” but is based on the beneficiary’s need for skilled care.

I found compelling arguments for a case against the current Medicare Hospice Benefit eligibility requirements in the New England Journal of Medicine article “Growing Pains for the Medicare Hospice Benefit” published this week:

• Defining hospice eligibility relative to the 6-month prognosis mark is clinically arbitrary and practically difficult, especially for people with non-cancer diagnoses. 
• Limiting hospice to patients who disavow disease-modifying therapy enforces an artificial distinction between curative and palliative therapy and potentially impedes both enrollment and quality of care.
• Carving out hospice from other Medicare services reinforces the notion that such care falls outside the core competencies expected of providers such as nursing homes and Medicare Advantage plans and conflicts with efforts to integrate care and align incentives across providers and settings.
• Policies should aim to integrate timely, high-quality palliative and end-of-life care into the continuum of services that {Medicare} beneficiaries receive.
• Integration of hospice into care delivered by Medicare Advantage plans, by accountable care organizations, and under bundled payment models more broadly, would allow for beneficial hospice and palliative care services to be introduced at any point in patients’ care, regardless of their prognosis. 
• This approach could ensure greater continuity of care and would be consistent with the broader aim of reorienting Medicare toward the delivery of flexible, patient-centered care driven by patients’ needs rather than by narrow and potentially inefficient eligibility and payment policies.

I found more compelling arguments to build a case against the current hospice eligibility requirements in the 2011 JAMA commentary “Rethinking Hospice Eligibility Criteria”:

• Access to hospice care is still constrained by the eligibility requirements that patients have a prognosis of 6 months or less without life-sustaining treatment and they forgo life-sustaining treatment related to their hospice admitting diagnosis. 
• These criteria create delays in hospice enrollment.
• The hospice benefit does not include a test of needs and relies instead on the requirement that a patient’s preferences are consistent with comfort care. Prognosis and preferences are only indirect indicators of need and many patients with substantial needs for hospice services have a prognosis or treatment preferences that make them ineligible.

And for those concerned about the costs of allowing more people to receive the Medicare Hospice Benefit:

• Spending in the last year of life accounted for 27.4 percent of all Medicare outlays for the elderly (Hogan et al. 2002).
• The Medicare hospice benefit represents a relatively small proportion of total Medicare spending. In 2010, an estimated 2.8 percent of Medicare benefit payments were spent on hospice care, with the same percent anticipated for 2011 (Centers for Medicare & Medicaid Services, Office of the Actuary, FY 2011 President’s budget February 2010). 
• Current Medicare spending on hospice has increased to nearly $12 billion, but more Medicare beneficiaries have availed themselves of the hospice benefit. The number of patients receiving care has grown from 700,000 in 2000, to more than 1.5 million people in 2011 (National Hospice and Palliative Care Organization).
• A study just published in JAGS concluded that nursing home residents who died with advanced dementia and enrolled in hospice concurrent with or after Medicare SNF care received fewer invasive treatment and had a significantly lower likelihood of a hospital death than did comparable residents without hospice.  (Influence of Hospice on Nursing Home Residents with Advanced Dementia Who Received Medicare-Skilled Nursing Facility Care Near the End of Life)
• The Centers for Medicare & Medicaid Services (CMS) has covered bevacizumab therapy {Bevaxizumab costs $80,000- $100,000} for its enrollees subsequent to FDA approval, notwithstanding the uncertainty about benefits in the population aged 65 years or older. (Carboplatin and Paclitaxel With vs Without Bevacizumab in Older Patients With Advanced Non–Small Cell Lung Cancer)
• Adding bevacizumab to carboplatin and paclitaxel chemotherapy was not associated with better survival among Medicare patients with advanced NSCL.  (Carboplatin and Paclitaxel With vs Without Bevacizumab in Older Patients With Advanced Non–Small Cell Lung Cancer)
• Patients receiving hospice for end-stage lung cancer lived an average of 39 days longer than patients receiving standard care.  (Comparing Hospice and Nonhospice Patient Survival Among Patients Who Die Within a Three Year Window)
• A patient with lung cancer could receive 662 routine hospice days for the cost of bevacizumab therapy. 
• Although a patient received $40,000 worth of care in her last two months of life, not one of her 25 doctors sat down with her or her family to discuss how she wanted to die.  (The Cost of Dying: End-of-Life Care CBS News)
• To test expanded hospice eligibility criteria, the Affordable Care Act of 2010 implemented a concurrent care demonstration project {i.e. “allowing patients to receive aggressive treatment as well as hospice care” at the same time} for 3 years. The costs of receiving concurrent care should be compared with those receiving usual care. Cost savings relative to usual care are likely because the addition of palliative care to aggressive treatment has been shown to reduce health care utilization and costs. (Rethinking Hospice Eligibility Criteria)
• Increasing indicated hospice enrollment may provide avenues for controlling cost and maximizing quality of life, by minimizing expensive interventions that improve neither the quality of care nor the quality of life at the end of life.   (Hospice Use and High-Intensity Care in Men Dying of Prostate Cancer)

I have decided that there is compelling evidence that the Medicare Hospice eligibility requirements are outdated and need to be re-written.  These policies are not driven by patient need and the evidence is mounting that limiting access to hospice and palliative services actually increases the cost of health care at the end of life.  Those with concerns about the rise in the cost of the Medicare Hospice Benefit appear to put undue focus on the increasing length of stay of a number of hospice patients without considering that hospice and palliative care can be more cost effective than usual care.  This cost reduction does not come from “irrationally rationing” health care but by facilitating conversations that allow patients and families to understand prognosis and verbalize preferences and goals about end-of-life care.  These conversations enable health care providers to guide patients away from costly treatments and interventions that do not facilitate attainment of patients’ goals or add to the quality or length of their lives.

If you agree that it is time for a change to the eligibility requirements, what can we do as hospice and palliative medicine providers to advocate for our patients to receive high-quality palliative and end-of-life care in a manner that makes sense?

Do we wait until the results of the concurrent care demonstration project are in? Do we ask AAHPM, NHPCO, and HPNA’s Public Policy and Advocacy Committees to weigh in on the matter?  Or do we wait until the lawyers file another class-action lawsuit against Medicare?

by: Shaida Talebreza Brandon (all opinions expressed are my own)