Can You Tell Me More About NPs Acting as "Attendings" for Hospice Patients?

Carolyn Buppert, NP, JD

Disclosures

January 27, 2006

Question

I understand that nurse practitioners (NP) can act as the attending for hospice patients. Are there state regulations that would prohibit NPs from being the attending for patients on Medicare or Medicaid? Are NPs who are designated as the "attending physician" of hospice patients reimbursed equally to the MD?

Joyce Perkins, RN, CHPN

Response from the Expert

Carolyn Buppert, NP, JD 
Attorney, Private Practice, Annapolis, Maryland

 

 

Some states may have regulations addressing qualifications for attendings for hospice patients, but the states I have researched give qualifications for the hospice's medical director but not attendings.

It's important to understand the difference between the medical director of a hospice and an attending physician. The medical director is employed by or under contract to the hospice agency, directs the medical aspects of the facility's services, and participates in the development of medical policy and procedure. These services are included in the package of services compensated by the prospective payment or daily rate paid to the hospice. State law often requires that the medical director be a physician. The medical director may act as a patient's attending physician (ie, evaluating and managing the patient's terminal illness and palliative care). If the medical director is a patient's attending, then the medical director may bill additional charges for his or her services as attending physician.

An individual patient enrolled in hospice may choose an attending physician who is not the hospice medical director. In that case, federal law now allows an NP to be the attending physician. The patient must designate a physician or NP as his or her attending physician at the time of enrollment in hospice. This allows a patient to continue to see his or her personal physician or NP while in hospice. It also allows hospices to employ NPs to act as attending physicians. The attending physician or NP may bill Medicare or another payer for services the clinician provides.

The federal law defining "attending physician" as a physician or NP is unusual. The statutory language is:

The term "attending physician" means, with respect to an individual, the physician (as defined in subsection (r)(1)) or nurse practitioner (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. [Citation is Social Security Act, Action 1861(dd)(3)(B). Available at: http://www.ssa.gov/OP_Home/ssact/title18/1814.htm]

Some state laws on hospice refer to "attending physician," without describing the qualifications of such a person. If there is no requirement in state law that an attending be a physician, and given that federal law states that an attending may be an NP, one might assume that a state would allow an NP to be an attending physician for hospice patients. However, without clear language, one cannot be certain how a state agency would rule.

An NP who wants to be certain that state law does not prohibit him or her from acting as an attending physician to a hospice patient should review the state's law on hospice, and if the law refers to "attending physician," look for a definition of "attending physician." If there is none, the safest way to proceed is to write to the state agency that regulates hospice and ask for a determination whether an NP may be an attending physician for hospice. When there is a conflict between state and federal laws, government attorneys conduct a "conflict of laws" analysis.

As for reimbursement, when an NP performs evaluation and management or other procedures as the attending, Medicare reimburses the NP 85% of 80% the Medicare Physician Fee Schedule rate for the setting in which the patient is seen (hospital, nursing facility, home or hospice facility). Some, but not all, states' Medicaid programs cover hospice care. Medicaid reimburses NPs at rates set by each state. The rates vary from 70% to 100% of the physician rate. While some states' Medicaid programs reimburse all forms of NPs, others reimburse only pediatric and family NPs. Commercial insurers have varying policies on reimbursing services within hospice, on reimbursing NPs, and on rates for physician and/or NP services.

Related Resources

What Are the Variables Related to Nurse Practitioner Orders for Patients at a Home Health Agency Versus a Hospice?

Palliative Care Resource Center

Scope of Practice and the Nurse Practitioner: Regulation, Competency, Expansion, and Evolution

Billing For Nurse Practitioner Services -- Update 2005: Guidelines for NPs, Physicians, Employers, and Insurers

APN Business and Law Resource Center

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