One of the primary agencies that oversees the regulation of long-term care facilities, including nursing homes, is the Center for Medicare & Medicaid Services (CMS). CMS is an agency of the Department of Health and Human Services. CMS has overseen the standards applicable to long-term care facilities since 1989, when the first public standards were published.
Recently, CMS released a “final rule” for long-term care facilities, which significantly amended the existing federal standards and regulations. This “final rule” is 713 pages long, and CMS described it thusly: “The final rule will revise the requirements that Long-Term Care facilities must meet to participate in Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory of practice of service delivery and safety….”
The new regulations are to be implemented in three phases, beginning November 28, 2016 (Phase I). Phases II and III will be implemented by this date in 2017 and 2018, respectively.
The new regulations update standards of practice that apply to long-term care facilities on a host of issues, such as resident assessments, transfer and discharge rights, care planning for nurses, quality of care, physicians’ services, etc. The regulations also address administrative matters that are substantially important to residents of long-term care facilities and their families.
At present, when a person is admitted to a nursing home or other long-term care facility, they are required to sign and execute a variety of documents, such as an Admission Agreement, Assignment of Benefits, Financial Responsibility, and an Arbitration Agreement. Arbitration Agreements have provided a tremendous hurdle for residents and their families to obtain adequate compensation and justice when a loved one is harmed by the medical negligence of a nursing home’s staff.
CMS recognized that arbitration agreements do not promote better medical care and may even create an incentive to provide less care for the elderly and disabled. As a result, CMS provided in its updated regulations:
Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements
This is significant for nursing home residents and their families. As of November 28, 2016, long-term care facilities that receive Medicare and Medicaid benefits may no longer enter into binding arbitration agreements with the resident or their family member(s) at the time of admission to the nursing home.
CMS is to be applauded for their bold step in outlawing this unconscionable practice. Hopefully, long-term care facilities will be proactive and withdraw their arbitration agreements and/or stop seeking to impose the agreements on their residents and family members even before the implementation date of Nov. 28, 2016.
If you need more information on this subject, contact Ben Locklar, a lawyer in our firm’s Personal Injury and Product Liability Section, at 800-898-2034 or by email at Ben.Locklar@beasleyallen.com. Ben handles nursing home litigation for the firm.
Source: 42 CFR Parts 405, 431, 447, 482, 483, 485, 488, and 489
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