I am in a neurology/oncology practice with an MD, and I see many patients with brain tumors. Most have far-advanced illness, so I refer to hospice on a frequent basis. Despite the fact that I can act and bill as an attending for my patients, I am told by Visiting Nurses Association (VNA) hospice that I cannot sign my own orders. They believe that because they are a home health/hospice agency that only physicians can sign the orders. Is this true?
Response From the Expert
| Response from Carolyn Buppert, NP, JD
Attorney, Private Practice, Annapolis, Maryland
The "conditions of payment" for hospice and for home health services are not the same.
The Federal statute stating the conditions of payment for home health agencies requires that a physician certify that home health services are necessary. The statute also requires that a physician establish the plan for home health services and that the services be furnished while the patient is under the care of a physician. It will take an act of Congress to change the physician-only language of this statute.
In contrast, the conditions of payment for hospice require that a patient's attending physician and the medical director of a hospice program certify that the individual is terminally ill. In addition, the conditions of payment require that the individual's attending physician and hospice medical director periodically review the plan of care.
However, in 2003, Congress changed some of the physician-only language of the Social Security Act to allow nurse practitioners (NPs) to be "attending physicians" for hospice patients, if the patient designates an NP as the attending physician. An NP may not act as an attending physician for the certification process, but once a physician certifies that the patient is terminally ill, an NP may act as the attending physician. These changes are found under "Miscellaneous Provisions," rather than under the "Conditions of Payment." Prior to 2003, only a physician could be an attending physician for a hospice patient.
Here is the statutory language that gives NPs the authority to be attending physicians for hospice:
The term 'attending physician' means, with respect to an individual, the physician (as defined in the Social Security Act subsection (r)(1)) or NP (as defined in subsection (aa)(5)), who may be employed by a hospice program, whom the individual identifies as having the most significant role in the determination and delivery of medical care to the individual at the time the individual makes an election to receive hospice care. 
If an NP is employed by a hospice and is acting as the attending physician, then the hospice bills Medicare Part A for the NP's services, separately from the daily charges for hospice services. If the NP is not employed by the hospice, then the NP or his or her employer bills Medicare Part B for the attending physician services.
The Centers for Medicare and Medicaid Services (CMS) Manuals contain further detail, as follows:
For hospice, an attending physician is defined as a doctor of medicine or osteopathy or an NP who is identified by the patient at the time when he/she elects hospice coverage, as having the most significant roles in the determination and delivery of the patient's medical care.
NPs acting as attending physicians perform services that are medical in nature, are reasonable and necessary, and are services that, in the absence of an NP, would be performed by a physician.
NPs cannot certify a terminal diagnosis or the prognosis of 6 months or less, or recertify terminal diagnosis or prognosis. In the event that a beneficiary's attending physician is an NP, the hospice medical director and/or physician designee may certify or recertify the terminal illness.
An NP serving as the attending physician should participate as a member of the interdisciplinary group that establishes and/or updates the individual's plan of care. The NP may not serve as or replace the medical director or physician designee.
In order to perform the physician services included in the definition of "attending physician," an NP indeed needs to write orders. There is no requirement that a physician signs these orders.
It sounds like the VNA is assuming that the law on conditions of payment for home health services applies, rather than the conditions of payment for hospice. If a patient is enrolled in hospice, the VNA should be billing under the hospice benefit rather than the home care benefit, and must follow the conditions of payment for hospice. If, however, the VNA is providing services for patients with brain tumors who are receiving curative therapies, then these patients would not be eligible for hospice. In that case, the VNA would bill under the home care benefit and would need to follow the conditions of payment for home health services. A physician would need to direct the care and sign the orders for those patients.
Medscape Nurses. 2005;7(2) © 2005 Medscape
Cite this: Carolyn Buppert. What Are the Variables Related to Nurse Practitioner Orders for Patients at a Home Health Agency Versus a Hospice? - Medscape - Oct 19, 2005.