Encouraging Customization and Courtroom Claims in Long-term Care

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Controversial rule promotes personal care and bars forced arbitration in long-term health care.

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When we are unable to provide direct care to our loved ones, we want to know not only that they will receive quality treatment, but also that they will enjoy a high quality of life.

In the coming decades, more Americans than ever before will decide whether to place a loved one in long-term care. Experts estimate that, between 2010 and 2050, the population of Americans over the age of 65 will more than double, resulting in roughly 27 million people classified as receiving long-term care.

The Centers for Medicare & Medicaid Services (CMS) is trying to make that decision a little easier through its recently released final rule that provides the first comprehensive update in 25 years to long-term care requirements. The updated requirements apply to all long-term care facilities that participate in the Medicare and Medicaid programs and will affect the care of close to 1.5 million residents in over 15,000 nursing homes.

Commenters, including advocacy groups for long-term care users, commended the final rule for its emphasis on “person-centered care.” Facilities must develop a personal care plan for each resident within 48 hours of admission. Newly constructed or renovated facilities may not have more than two resident beds per room. Each facility must also designate a director of food and nutrition services to ensure that each resident receives a “nourishing, palatable, well-balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident.” Further, facilities must establish compliance and ethics programs to set written standards to reduce criminal and civil violations.

Despite its focus on improving patient care and compliance, the final rule has generated considerable controversy. When it was initially proposed, long-term care users, senior service groups, state agencies, health care associations, health care professionals, and advocacy groups submitted nearly 10,000 comments voicing both acclaim and condemnation.

Some of the resistance stems from the expenses associated with the new requirements, which will cost long-term care facilities a reported estimated total of $831 million in the first year and $736 million per year for subsequent years. The average facility is estimated to spend approximately $62,900 in the first year, with an additional $55,000 in subsequent years. Some of these costs are associated with hiring additional staff to ensure that all new construction complies with the new requirements and creating new training programs.

The most hotly-contested provision, however, concerns the use of arbitration agreements. The rule prohibits requirements for pre-dispute arbitration agreements as a condition of admission.

It is now quite common for long-term care facilities to require residents to forfeit their right to bring claims in court against treatment facilities, despite reported cases of negligence, elder abuse, sexual assault, and wrongful death in nursing homes.

This use of compelled arbitration has been widely criticized. State attorneys general in 15 states and the attorney general of the District of Columbia submitted a letter to CMS, advocating for the prohibition of arbitration agreements in long-term care. Congress attempted to pass bills regulating arbitration agreements in long-term care facilities five times between 2008 and 2010.

Many reports have condemned the practice of arbitration in general. Parties in arbitration reportedly receive awards that are on average 35 percent lower than those received by litigants in court. According to reports focused on nursing homes, during a four-year period, over 100 cases against nursing homes for medical malpractice, elder abuse, and wrongful death were forced into arbitration.

CMS argues that these arbitration agreements are “unconscionable” because long-term care “agreements are often made when the would-be resident is physically and possibly mentally impaired, and is encountering such a facility for the first time.” Senator Patrick Leahy (D-Vt.) commended the rule, saying, “The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care.”

Still, many from the nursing home industry argue that arbitration is actually beneficial for residents because it offers a fast and effective alternative to long, costly court battles. Furthermore, without arbitration agreements, the costs of compliance could shift to residents by causing price increases and could even lead to nursing home closures.

“AHCA is extremely disappointed that CMS included in the final rule a provision banning all pre-dispute arbitration agreements,” reportedly said Mark Parkinson, the President and Chief Executive Officer of the American Health Care Association (AHCA). “That provision clearly exceeds CMS’s statutory authority and is wholly unnecessary to protect residents’ health and safety.”

Given the controversy surrounding the rule, its future is uncertain. Most recently, the AHCA sued the Secretary of Health and Human Services and the Acting Administrator for CMS over the rule, contending that HHS and CMS acted beyond the scope of their authority because they cannot regulate dispute procedures. CMS reportedly argues that they can choose to set parameters for facilities to receive Medicare and Medicaid funding.

The U.S. Supreme Court is considering the issue of mandatory arbitration agreements in nursing homes, as it recently heard a case considering the use of mandatory arbitration by Kindred Nursing Centers.