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New Long Term Care Regulations will Draw the Attention of Surveyors

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Mindi M. Johnson
Foster Swift Health Care Law Report
December 2010

All long term care facilities that work with hospices: consider yourselves warned.  Surveyors will be coming, scrutinizing your agreements with hospices, and handing out citations for non-compliance.  Now is the time to make some changes to avoid any negative ramifications.

The Centers for Medicare and Medicaid Services ("CMS") published proposed rules for long term care facilities related to hospice services on October 22, 2010 (the "Proposed Rules").  The Proposed Rules require long term care facilities to: 1) arrange for hospice services through a written agreement, or 2) not make such an arrangement but assist in transferring a resident to a facility that will when requested by the resident.  Additionally, CMS established required content for the written agreement.  Long term care facilities that have been working with hospices have already been introduced to the required language.  Those who have not should take immediate action to update their provider agreements with hospices. 

These Proposed Rules mirror the hospice regulations that went into effect on December 2, 2008.  Since coordination of care was such a key concern, the Proposed Rules were introduced to equalize the playing field.   Once they become effective, both providers (hospices and long term care facilities) will be legally obligated to fulfill the same requirements.

Up to this point (and until the final rules become effective), long term care facilities have not been penalized for failing to create a formal arrangement with a hospice provider.  Once the final rules go into effect, however, long term care facilities must comply in order to qualify to participate as a Skilled Nursing Facility and/or Nursing Facility in the Medicare and Medicaid programs, respectively.  Thus, all long term care facilities should take note to confirm that their agreements are compliant.

In our experience, written provider contracts are glaring targets for surveyors who are eager to issue citations.  That means the long term care facility's hospice provider agreement must be carefully drafted.  At a minimum, the regulatory language must be included.  Additionally, the agreement's provisions must allow for some flexibility to ensure they will be followed and also remain workable for both providers.

We have assisted hospices and long term care facilities in designing their agreements and are very familiar with the regulations for both types of providers.  For assistance in drafting your hospice provider agreements, please contact the long term care experts in our Health Law Practice Group.