Last year, the Centers for Medicare and Medicaid Services (“CMS”) issued a rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. The result of the new rule would have been that families who have an issue with a nursing home regarding care, abuse, and the like, would have been able to sue in court to have their case heard versus having to go through a binding arbitration process. However, the American Health Care Association along with four long-term care providers filed suit against the Health and Human Services Secretary and CMS arguing that the agencies overstepped their authority in issuing the rule. Injunctive relief was granted preventing the rule from going into effect.
In May of this year, the U.S. Supreme Court in Kindred Nursing Centers L.P. vs. Clark, overturned a ruling by the Kentucky Supreme Court in which the Kentucky Supreme Court stated that durable powers of attorney must explicitly permit an agent to enter into an arbitration agreement or otherwise risk violating the Kentucky Constitution where access to the courts and a trial by jury is ‘sacred’ and inviolate’. Instead the U.S. Supreme Court held that Kentucky’s ruling violated the Federal Arbitration Act by treating arbitration agreements differently.
As a result, earlier this month CMS issued proposed revisions to its arbitration agreement requirements for nursing homes and long-term care facilities. CMS is no longer proposing a ban on arbitration agreements in admissions agreements, but it is requiring greater transparency as to the meaning and understanding of such provisions in admissions agreements. Thus, it appears at this juncture that CMS is trying to find some middle ground between a complete ban on arbitration agreements and the decision in the Kindred case, but only time will tell if that middle ground has been found between the rights of the families of patients and the long-term care facilities. #elderlaw #elderabuse #nursinghome #arbitration #CMS #SCOTUS @bgnthebgn
In August 2015, Congress passed the Notice of Observation Treatment and Implication for Care Eligibility Act (the “Notice Act“). The Notice Act requires hospitals to give individuals who are receiving observation services as an outpatient for more than 24 hours, oral and written notification of observation status within 36 hours of the beginning of such services. This notice is critical for individuals on Medicare because Medicare will only cover nursing home care following a hospitalization if the individual is classified as an inpatient for three (3) days prior to needing nursing home care. If the individual is not classified as an inpatient, Medicare will not cover the hospitalization or subsequent care, such as rehabilitation or skilled nursing, which can be financially devastating to a family.
Implementation of the Notice Act was to have taken effect in August of this year, and the Centers for Medicare and Medicaid Services (“CMS”) indicated that the final rules associated with the Notice Act would be effective October 1st. However, the written notice does not become effective until 90 days following approval of the Medicare Outpatient Observation Notice by the Office of Management and Budget and such written notice does not yet have approval. What this all means is that the Notice Act has not yet been fully implemented and may not be until early next year. In the interim, the Center for Medicare Advocacy has created an infographic to help individuals understand observation status and what it means as it relates to the cost of their care so that families can be engaged in the process. #AskAboutObservation #elderlaw #observationstatus @bgnthebgn
FLASH UPDATE: The Medicare Outpatient Observation Notice and instructions are now available online. The standardized form is giving individuals notice of their ‘observation status.’ Hospitals and critical access hospitals are required to start using this Notice no later than March 8, 2017.
An update regarding the Centers for Medicare and Medicaid Services (“CMS”) new rule banning the use of binding pre-dispute arbitration agreement by nursing homes that accept Medicare and Medicaid patients. As was expected, the nursing home industry has fought back and filed suit in the Northern District of Mississippi. In a 40 page Order, a Federal District Court Judge has granted the preliminary injunction requested by the American Health Care Association and several nursing homes. In the opinion, the Judge recognized the position many families find themselves in cases of abuse and neglect when dealing with the nursing home, but indicated that CMS may have overstepped its authority in issuing the rule, and therefore, enjoined CMS from enforcing the rule until the courts could resolve the issue or Congress passed legislation. Therefore, nursing homes will continue to be able to include such provisions in their contracts. Furthermore, with the election in the rear view mirror, only time will tell what will become of this rule. #elderlaw #elderabuse #nursinghome #arbitrationbanned
Also, a brief update that the Death with Dignity Act in the District of Columbia has cleared the last hurdle before going to Mayor Muriel Bowser. The vote of the D.C. Council was again 11-2 and was passed with an amendment requiring some level of annual reporting by the Department of Health. The Act is expected to become law, but Congress still has oversight and the Act may still be overturned. However, at this juncture D.C. joins Oregon, Washington, Vermont, California and Colorado in passing such legislation. As has been expressed before, the passage of this Act is a reminder to get your plan in place. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @bgnthebgn
The Centers for Medicare and Medicaid Services (“CMS”) recently issued a final rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. Such arbitration clauses are typically found in the admissions agreements between a new resident (or their family) and the nursing home, but are very often overlooked. The result of this new rule is that families who have an issue with a nursing home regarding care, abuse, and the like, can now sue in court to have their case heard versus having to go through a binding arbitration process.
The original proposed rule only required nursing homes to explain the arbitration agreement to new residents and obtain an acknowledgement that they understood. The final rule is the result of many comments on the proposed rule that favored an outright ban on such arbitration agreements. The nursing home industry has stated that the arbitration agreements have kept costs down and the new rule will undoubtedly increase costs and force closures of some facilities. Moreover, there is an argument that CMS has overstepped its authority in issuing such a rule and we may see the nursing home industry fight the implementation of the rule currently scheduled to take effect on November 28th. The new rule will only apply to future admissions agreements and not to existing contracts, but stay tuned to see whether a battle erupts between the nursing home industry and CMS. #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn