Nursing homes can no longer require binding arbitration as a condition for becoming a resident, according to new federal regulations that aim to improve the quality of care provided to nursing home residents.
The regulations have been issued by the Centers for Medicare and Medicaid Services, and extend to nursing homes that receive Medicare and Medicaid dollars; most (but not all) will go into effect after this Thanksgiving. Some of the changes are to provide clarity to providers and to make existing regulations more readable. Other provisions, however, are entirely new and will enhance the rights and protections of nursing home residents. The new regulations are not likely to apply to assisted living facilities, which are subject to less federal oversight.
Before, a nursing home could require a resident or a resident’s family member to sign an agreement before admission that would forfeit the resident’s constitutional right to a jury trial if they were injured or killed due to abuse or neglect. Now, residents and their families may still agree to binding arbitration, but only after a dispute has arisen when the resident or family is aware of the nature of the claim to be resolved. This is an important change. Contrary to conventional views, arbitrations often cost a nursing home resident far more than a jury trial. And arbitrations are private proceedings, so abuse or neglect at facilities may never come to public attention.
The new regulations will also require more comprehensive care planning for each resident within 48 hours of admission. Care planning is to be centered on the individual needs of each resident. Staff is to be provided instructions in the plan on how to provide the necessary care to each resident.
There is also a new competency requirement for nursing staff. It will be based, in part, on the number of residents at the facility and the severity of their needs. New provisions are designed to reduce the use of psychotropic drugs. Such drugs are often over-prescribed in older populations and are associated with prolonged sedation, impaired cognition, and increased risk of falls.
The new provisions clarify that a physician assistant, nurse practitioner, or a clinical nurse specialist may order labs, radiology, or other diagnostic services for a patient as required and need not wait for a physician to issue the order. This is important, as delays in diagnosis result in delay of care.
In November 2016, a federal court ruled that CMS could not enforce the rule because CMS could not prove that the rule was necessary to protect resident safety and that the promulgation of the rule exceeding the agency’s authority. Am. Health Care Ass’n v. Burwell, No. 3:16-CV-00233 (N.D. Miss. Nov. 7, 2016). As of 2017, the issue has not made its way to the United States Supreme Court for final resolution.
In the meanwhile, it appears that the new administration may seek to repeal the rule. In May 2017, the White House’s Office of Management and Budget met with several consumer organizations who wanted the arbitration prohibition to continue and White House officials hinted that there may be a repeal of the rule entirely.