On October 22, 2010, CMS published proposed Medicare conditions of participation for SNFs that directly provide or arrange for the provision of hospice services in their facilities. CMS estimates that 35% of hospice patients nationally receive that service in SNFs. The proposed rule for SNFs follows, and closely parallels, revised Medicare conditions of participation for hospices issued by CMS in June 2008. That rule included substantial provisions governing the relationship of SNFs and hospices that provide services in SNFs, and CMS has attempted to closely mirror those provisions in this proposed regulation.

A major focus of the proposed regulation is on contracts between SNFs and hospice providers and what must be included in those contracts. The proposed rule, like the June 2008 hospice regulations, focuses heavily on the division of responsibility between the SNF, which is required to provide room and board and care related to a resident's needs that are unrelated to their terminal illness, and the hospice, which is responsible for providing palliative care related to the resident's terminal condition. Under the June 2008 hospice regulations, hospices have very specific services they must provide directly and, where they contract with the SNF or other providers to offer services they are not required to provide directly, those regulations dictate certain obligations the hospice must undertake to ensure continuity of care, coordination with care the SNF must provide, and communication between the SNF and hospice. The new proposed SNF regulations also focus on coordination of care, communication between the SNF and hospice, and ensuring that each provider understands and carries out its delegated responsibilities for long term care residents electing the hospice benefit.

Some of the key provisions of the proposed regulation include:

This proposed regulation, which we expect to become final without major revisions, will require that all SNF-hospice agreements be reviewed and probably revised once the rule is final. Poyner Spruill's health care team published a series of model SNF-hospice agreements in June 2008 when the revised hospice conditions of participation were published, which included provisions on the provision of hospice services in SNFs. Included in those was a template specifically for hospices and SNFs who have shared responsibility for hospice residents receiving end of life care in nursing facilities. CMS is accepting public comments on the proposed regulations until December 21, 2010.

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