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.
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
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 http://blog.cms.gov/2016/09/28/commitment-to-person-centered-care-for-long-term-care-facility-residents.
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 https://www.federalregister.gov/public-inspection.
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.
No comments:
Post a Comment