Thursday, September 29, 2016

Government Updates Nursing Home Regulations

The Federal Government has issued a final rule to update and reform its regulation of long-term care facilities. The final rule, issued by the Centers for Medicare and Medicaid Services (CMS), was formally published in the Federal Register on October 4, 2016.

Federal nursing home regulations have not had a comprehensive update since 1991. Acting CMS Administrator Andy Slavitt describes the updated regulations as “a major step forward to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs.”
Use of Pre-Dispute Arbitration Agreements Restricted
Among its many pages, the new rule limits the use of arbitration provisions in nursing facility admission contracts. Effective November 28, 2016 any long-term care facility that receives federal funding is barred from requiring residents to agree to resolve disputes through private arbitration as a condition of admission to the facility. Here is Administrator Slavitt’s comment on this new limitation.  
The rule makes important changes to strengthen the rights of residents and families in the event that a dispute arises with a facility. Historically, many facilities require residents to agree to binding arbitration clauses when they are admitted to these facilities. These clauses require the resident to settle any dispute that may arise using arbitration rather than the court system. Effective November 28, 2016, our final rule will prohibit the use of pre-dispute binding arbitration agreements. This means that facilities may not require residents to sign pre-dispute arbitration agreements as a condition of admission to that long-term care facility.
Facilities and residents will still be able to use arbitration on a voluntary basis at the time a dispute arises. Even then, these agreements will need to be clearly explained to residents, including the understanding that these arbitration agreements are voluntary, and that these agreements should not prevent or discourage residents and families from talking to authorities about quality of care concerns.
Brief Overview of the New Rule
The new rule includes hundreds of new regulations that will keep lawyers busy for some time. Examples include new provisions requiring facilities to establish formal grievance procedures and provide more training for staff, limiting discharges of residents who are awaiting Medicaid payments, prohibiting "hospital dumping" by facilities, and giving residents and their families more say in care.  

Here is a related news release issued by CMS on September 29, 2016 which provides an overview of some of the changes finalized in the new Rule.
CMS finalizes improvements in care, safety, and consumer protections for long-term care facility residents
Revisions mark first major rewrite of the conditions of participation for long-term care facilities since 1991
Today, the Centers for Medicare & Medicaid Services (CMS) issued a final rule to make major changes to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs. The policies in this final rule are targeted at reducing unnecessary hospital readmissions and infections, improving the quality of care, and strengthening safety measures for residents in these facilities. These changes are an integral part of CMS’s commitment to transform our health system to deliver better quality care and spend our health care dollars in a smarter way, setting high standards for quality and safety in long-term care facilities.
The health and safety of residents of long-term care facilities are our top priorities,” said CMS Acting Administrator Slavitt. “The advances we are announcing today will give residents and families greater assurances of the care they receive.”
To learn more about these efforts to support person-centered care and improved safety for long-term care facility residents, please visit the CMS Blog at
As the first comprehensive update since 1991, this rule will bring best practices for resident care to all facilities that participate in Medicare or Medicaid, implement a number of important safeguards that have been identified by resident advocates and other stakeholders, and include additional protections required by the Affordable Care Act. CMS received nearly 10,000 public comments, which were considered in finalizing this rule.
Changes finalized in this rule include:
  • Strengthening the rights of long-term care facility residents, including prohibiting the use of pre-dispute binding arbitration agreements.
  • Ensuring that long-term care facility staff members are properly trained on caring for residents with dementia and in preventing elder abuse.
  • Ensuring that long-term care facilities take into consideration the health of residents when making decisions on the kinds and levels of staffing a facility needs to properly take care of its residents.
  • Ensuring that staff members have the right skill sets and competencies to provide person-centered care to residents. The care plans developed for residents will take into consideration their goals of care and preferences.
  • Improving care planning, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services.
  • Allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.
  • Updating the long-term care facility’s infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.
CMS set out to revise the long-term care facility standards and originally issued the proposal being finalized today, in conjunction with the White House Conference on Aging in 2015, which marked the 50th anniversary of Medicare and Medicaid.
The final rule is available on the Federal Register at

The new provisions which limit arbitration agreements are found at Section 483.70(n) of the final rule. They read as follows:
(n) Binding arbitration agreements.
(1) A facility must not enter into a pre-dispute agreement for binding arbitration with any resident or resident’s representative nor require that a resident sign an arbitration agreement as a condition of admission to the LTC facility.
(2) If, after a dispute between the facility and a resident arises, and a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.
(i) The facility must ensure that:
(A) The agreement is explained to the resident and their representative in a form and manner that he or she understands, including in a language the resident and their representative understands, and
(B) The resident acknowledges that he or she understands the agreement.
(ii) The agreement must:
(A) Be entered into by the resident voluntarily.
(B) Provide for the selection of a neutral arbitrator agreed upon by both parties.
(C) Provide for selection of a venue convenient to both parties.
(iii) A resident’s continuing right to remain in the facility must not be contingent upon the resident or the resident’s representative signing a binding arbitration agreement.
(iv) The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with §483.10(k).
(v) The agreement may be signed by another individual if:
(A) Allowed by state law;
(B) All of the requirements in this section are met; and
(C) That individual has no interest in the facility.
(vi) When the facility and a resident resolve a dispute with arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years and be available for inspection upon request by CMS or its designee.

Monday, September 26, 2016

Why you Should See an Elder Law Attorney if You Need Long Term Care

Early in my career as an elder law attorney, I attended a talk given by the administrator of a local nursing home. This happened over 30 years ago, but I remember it well. Some events just stick in your mind. 
The subject of the talk was what you should expect when you enter a nursing home. At the end of the presentation, the administrator took questions. One audience member raised her hand and asked an important question – “what happens to my home when I run out of money to pay for my care? Will I have to turn it over to the nursing home?”
The administrator answered by saying that when you use up your savings, you have to sell your home to pay for your care. As a young attorney who had spent a lot of time studying the laws related to paying for nursing home care, I knew that the administrator’s answer was wrong. When you exhaust your ability to pay the full cost of the nursing home, Medicaid will step in and pay for your care. You don’t have to sell your home. Medicaid rules allow you to keep your home.
I also understood that it was to the nursing home’s advantage for people to sell their homes to pay for their care rather than go on Medicaid. That is because nursing homes charge residents who pay privately more than they can charge once the resident goes on Medicaid. So, to maximize its profits a nursing home will usually want to have as many “private pay” residents as possible.
The nursing home and its residents have a fundamental conflict of financial interest. Yet, most nursing home residents and their families rely on the nursing home for advice about payment rules and Medicaid. I felt it was important that seniors at the talk knew that the law protected their homes when they entered a nursing home, so I raised my hand.
When the administrator called on me I stood up and said that I thought that her answer to the question of what happens to your home when you run out of money was not entirely correct.  (I was trying to be tactful).  I said that the law provides that you can retain ownership of the property where you resided when you entered the nursing home and still be eligible for Medicaid assistance to pay the cost of your nursing home care. The administrator gave me one of those “looks that can kill” and moved on to the next question. After the meeting ended she came over to me and said, “Look Sonny, we are trying to run a business here. Don’t you be attending any more of my meetings!”
Fair enough. I did not attend any more of her meetings. But I did start setting up public presentations on my own so that I could explain the payment rules to seniors and their family members. I didn’t want people to have to rely solely on the information they got from the nursing home. And I’m proud to say that over the years I was been able to protect the homes of many residents of that administrator’s nursing home.
I have to be careful here because I think that these days most nursing home employees do try to do the right thing and provide people with as accurate information as they can. But nursing home administrators, admission directors, and business office managers are not lawyers – you can’t expect them to fully understand the laws that protect the home and other resources of their residents. In fact, some of the better nursing homes recognize this and recommend that their residents meet with an elder law attorney to discuss payment options and Medicaid rules.
But many families still try to "go it alone" with only the limited direction they get from the nursing home to guide them. They need to be aware of the nursing home’s conflict of interest: the longer a resident is in private pay status rather than on Medicaid, the more profit for the nursing home. Smart consumers don’t rely solely on the nursing home for information about paying the cost of care. They get advice about their rights and options from an expert elder law attorney who is working just for them.     
In 1985, when I attended the administrator’s talk, the average cost of a month in a nursing home was under $1,400.  Today the average cost in Pennsylvania has soared to over $9,000 a month.  Few families can afford to bear that kind of cost for long. Most long term nursing home residents eventually go on Medicaid. They need to know that their home is still protected: they can keep it by filing the right paperwork with the Medicaid office and getting Medicaid assistance to help pay for their care sooner rather than later.  
Unfortunately, the protection of your home is not quite as good as it was in 1985. In 1994 a new law called Medicaid Estate Recovery came into effect that can force the sale of your home after your death in order to reimburse Medicaid.
Estate Recovery applies if you get Medicaid funded long term care services in a nursing home. It also applies if you get Medicaid help with long term care at home through the Aging Waiver or LIFE programs. Pennsylvania’s Estate Recovery Department recovers tens of millions of dollars every year, mostly from the sale of homes, so this is a real concern.
There are ways to plan in advance to avoid Estate Recovery. If you want to protect your home for your family, planning with an expert elder law attorney is critically important.  The sooner you start that planning, the better your family’s chances.
If you or a family member needs long term care or may need it in the next five to seven years and resides in Pennsylvania, you can get up to date advice and guidance from the lawyers at Marshall, Parker and Weber. We will show you how to protect your home from loss to health related costs during your life and from Estate Recovery after your death.

Monday, September 19, 2016

Should I Wait to Get my Flu Shot?

I was planning to get my flu shot this week. I see the signs (advertisements) every time I visit the supermarket or drug store. About two weeks ago my wife received a mailer from Wegmans Pharmacy saying “It’s time to get your flu shot.”
So, I figured this must be the right time to get this annual ritual over with. Right?
But, Wait!  This weekend there was a piece on NPR’s Weekend Edition that suggests that “Older People Might Consider Waiting A Bit Longer ToGet Flu Shot.” It seems that immunologist Laura Haynes suggests people over 65 wait until Halloween to get their flu shots, to make sure the immunity lasts through the flu season.
According to Dr. Haynes, a professor of immunology with the University of Connecticut Center on Aging: “the best time for most people to get the flu vaccine would be in October. If you're a little bit older and over 65, I would say between Halloween and Thanksgiving.” The reason is that our older immune response wanes more quickly than when we were younger. So, we older adults may want to wait a little longer to get our shot so that we stay protected through the worst of the flu season (which happens from January to April).
Even though the flu vaccine will not necessarily keep you from getting sick, older adults should get the shot since it has been shown that it can keep us from getting sick enough to avoid having to go to a hospital. Flu is a serious disease responsible for many deaths each year, particularly among older adults and young children. So most seniors should be sure to get the shot. Later may be best, but early is better than never. Of course, checking with your doctor is a good idea, especially if you have any questions or concerns.
As with most things involving drugs, the evidence is uncertain and it's unclear how long the immunity imparted by the vaccine lasts for older adults. Still, the idea of waiting until we are closer to actual flu season makes a lot of sense to me.
So, my wife and I are going to delay getting our shots this year, and it’s not procrastination. Happy Halloween!
Here is a link to the NPR story and a related article from Julie Appleby of Kaiser Health News.

For a different point of view see: When should I get my flu shot?