Crack­down on nurs­ing homes’ use of ar­bi­tra­tion may lead to law­suits

Modern Healthcare - - NEWS - By Vir­gil Dick­son

The nurs­ing home in­dus­try may end up su­ing the Obama ad­min­is­tra­tion over its move to pre­serve res­i­dents’ right to sue the fa­cil­i­ties when dis­putes arise.

A new CMS rule will bar nurs­ing homes from com­pelling res­i­dents to settle dis­putes in ar­bi­tra­tion as a condition of ad­mis­sion. Be­gin­ning Nov. 28, fa­cil­i­ties are pro­hib­ited from en­ter­ing bind­ing ar­bi­tra­tion agree­ments at any time be­fore a dis­pute arises.

The pro­vi­sion takes aim at a com­mon prac­tice among nurs­ing homes of re­quir­ing new res­i­dents to agree to bind­ing ar­bi­tra­tion and waive their right to take the fa­cil­ity to court as part of the stack of pa­per­work they or their fam­i­lies fill out when they ar­rive. It goes much fur­ther than the re­stric­tions pro­posed in the draft rule and drew a swift and harshly worded re­sponse from one of the in­dus­try’s largest trade groups.

The Amer­i­can Health Care As­so­ci­a­tion said in a state­ment that the pro­hi­bi­tion “clearly ex­ceeds CMS’ statu­tory author­ity and is wholly un­neces- sary to pro­tect res­i­dents’ health and safety.” The group said it is “con­sid­er­ing the ap­pro­pri­ate steps for it to take in light of this un­jus­ti­fied ac­tion.”

Lead­ing Age, the other ma­jor trade group that rep­re­sents nurs­ing homes, sim­i­larly as­serted that the agency over­stepped its author­ity. “Ar­bi­tra­tion agree­ments should be en­forced if they were ex­e­cuted sep­a­rately from the ad­mis­sion agree­ment, were not a condition of ad­mis­sions, and al­lowed the res­i­dent to re­scind the agree­ment within a rea­son­able time frame,” Lead­ing Age said in a state­ment.

The 713-page fi­nal rule—the first sig­nif­i­cant change to the con­di­tions of Medi­care and Med­i­caid par­tic­i­pa­tion for the fa­cil­i­ties since 1991— also in­tro­duces new re­quire­ments aimed at im­prov­ing the qual­ity of care and re­duc­ing un­nec­es­sary hospi­tal read­mis­sions.

The fa­cil­i­ties, for ex­am­ple, will have to pro­vide dis­charge plan­ning by an in­ter­dis­ci­pli­nary team, pro­vide dis­charged res­i­dents and their care­givers with in­for­ma­tion about fol­low-up care and make sure care in­struc­tions are con­veyed to re­ceiv­ing fa­cil­i­ties and any other or­ga­ni­za­tion that will pro­vide ser­vices.

The CMS re­ceived more than 10,000 com­ment let­ters on the draft version of the reg­u­la­tions is­sued last July. Lead­ing Age praised the agency for walk­ing back a re­quire­ment for an at­tend­ing physi­cian to eval­u­ate res­i­dents be­fore non-emer­gency trans­fers. But the group balked at the sweep of new staff train­ing re­quire­ments and a new man­date for fa­cil­ity-wide as­sess­ments in­tended to align staffing lev­els and ex­per­tise with the spe­cific needs of the res­i­dents.

The CMS es­ti­mates the poli­cies will cost the in­dus­try $831 mil­lion in the first year the rule is in ef­fect and $ 736 mil­lion per year for sub­se­quent years.

Be­gin­ning Nov. 28, fa­cil­i­ties are pro­hib­ited from en­ter­ing bind­ing ar­bi­tra­tion agree­ments at any time be­fore a dis­pute arises.

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