CMS Issues Final Rule Requiring Written Agreements Between LTC Facilities and Hospices

Recently, the Centers for Medicare and Medicaid Services (CMS) issued a final rule mandating that long term care (LTC) facilities and hospice providers enter into written agreements if the facility chooses to arrange hospice services through a Medicare-certified hospice provider. The rule becomes effective on August 26, 2013.

This final rule comes after the Department of Health and Human Services’ Office of Inspector General (OIG) raised several concerns regarding hospice care in Medicare-certified skilled nursing facilities and Medicare-certified nursing facilities. In September 2009, the OIG released a report that found nearly one-third of Medicare hospice beneficiaries lived in nursing facilities and that 82% of hospice claims for these beneficiaries did not meet the requirements for Medicare coverage. In addition, both hospices and LTC facilities are required by law to provide many similar services, which creates a greater likelihood that residents may receive duplicative or missing services.

As a result, CMS has added a new Condition of Participation (CoP) that now requires LTC facilities to have a written agreement in place to create a clear division of responsibilities between LTC facilities and contracted hospice providers. CMS believes that this new rule will improve the quality and coordination of care for LTC residents who elect to receive the hospice benefit.

The final regulations dictate what must be addressed in the written agreement. There are several required provisions. Some examples of the terms that must be included are as follows:

• description of the services the hospice will provide to ensure delivery of services in accordance with professional standards and timeliness of services;
• description of the hospice’s responsibilities for determining the appropriate hospice plan of care (i.e. medical direction and management of the palliative care needs such as counseling, social work, medical supplies and medications)
• description of the services the LTC facility will continue to provide based on each resident’s care plan (i.e. personal care needs, 24-hour room and board care, nursing needs in coordination with hospice, and an appropriate the level of care to meet the resident’s needs);
• designated communication process, including how the communication will be documented between the LTC facility and the hospice provider, to ensure that the all needs of the residents are addressed and met 24 hours a day; and,
• required immediate notification to the hospice provider by the LTC facility regarding any significant change in the resident’s physical, mental, social, or emotional status, any clinical complications that would suggest a need to alter the plan of care, a need to transfer resident from the facility for any reason, or the resident’s death.

LTC facilities that provide hospice services through arrangements with hospice providers should ensure that they have a properly signed, written agreement in place that includes all required provisions. Otherwise, the facility will be exposed to sanctions for failure to meet the new CoP. Enforcement of the new CoP begins on August 26, 2013.

If you are a hospice or LTC entity in need of assistance to draft a written agreement or would like an existing agreement reviewed and revised, please contact an experienced healthcare law attorney at Wachler & Associates, P.C. at 248-544-0888.