AHCA Submits Comments on Proposed LTC/Hospice Contract Rule

In October, the Department of Health and Human Services published a proposed rule which would require that a written agreement be established between a long term care (LTC) facility in which a Medicare beneficiary is residing, and a Medicare-certified hospice program that is providing care to the resident. Specifically, the proposed rule states that when an LTC facility chooses to arrange for hospice services for its residents through an agreement with a Medicare-certified hospice program, the two entities must have in place a written agreement which must "clearly identify the responsibilities of each entity when arranging for the provision of hospice services to an LTC resident who elects the hospice benefit. This agreement would be required even if the Medicare-certified hospice and the LTC facility were under common control and/or ownership." In casesof an LTC facility that chooses not to formally arrange hospice care for its residents, the proposed rule will require that such facilities assist residents in transferring toa different LTC facility that would arrange for hospice care services to be provided to the resident.

On December 21, 2010, the American Health Care Association (“AHCA”) submitted its formal comments on the proposed rule to HHS. Among its comments, the AHCA raised concern over a provision of the proposed rule which places on nursing facilities a responsibility to ensure that the contracted hospice provider meets certain professional standards,and that services are timely provided. The AHCA contended that it is not possible or reasonable for the nursing facility to ensure that the hospice meets these requirements.The AHCA also noted and requested clarification of an inconsistency between the proposed contract requirements and the conditions of participation for hospices relating to certain notice requirements. Additionally, in response to the proposed rule’s requirement that the written agreements ensure that a resident’s plan of care include services furnished by the LTC facility to attain or maintain the resident’s highest possible physical, mental, and psychosocial well-being, the AHCA commented that due to the changes likely to take place for residents once they choose hospice care, confusion may arise as to what constitutes the resident’s highest practicable well-being. Therefore, the AHCA suggested that the proposed rule be amended to clarify that the determination of highest practicable well-being should be made in consideration of changes in the resident’s health status and choices relating to the type of care the resident wishes to receive.

If you have questions about the proposed rule or the AHCA’s comments thereto, please contact Susan Ziel at 317-238-6244 or sziel@kdlegal.com.