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On October 4, 2016, the Department of Health and Human Services (DHHS), published a document that revised the regulations governing the management of long-term care facilities. The 700-page document details the reforms that are to be implemented in phases within a period of 3 years and establishes rules on staffing, provision of services and resolution of disputes.
One particular rule that that has caught more attention than the rest is the one governing how disputes are to be resolved. Not only will this rule affect more than 15,000 healthcare facilities that are recipients of Medicare and Medicaid funds, but also 1.5 million senior residents residing in them.
Historically, standard procedures require residents to agree to a binding arbitration clause prior to admission to a long-term care facility. This requirement, which consumer advocacy groups refer to as “forced arbitration” obliges residents or their families to settle any dispute with the facility through arbitration instead of litigation. Starting on November 28, 2016, however, facilities will have to modify their admission process in accordance with a DHHS ruling which specifically states that facilities must not enter into a binding agreement until after the issue arises. The use of pre-dispute binding arbitration agreements is now banned.
As soon as the new regulation takes effect, it will be unlawful for nursing homes to make the signing of an arbitration agreement mandatory for admission. Arbitration can still be considered as a means to settle a dispute when it arises, but on a voluntary basis. In addition, facilities have the responsibility to clearly explain to residents what an arbitration agreement is all about; with the residents acknowledging that they understand it is voluntary.
In addition to the controversial arbitration rule, the DHHS has put in place other reforms that aim to improve the quality of care provided to senior patients. These are some of the changes you can expect in the coming years.
Residents, together with their families, are enjoined to be involved in creating a care plan that has to be completed within 48 hours from admission. The plan specifies the resident’s food and hygiene preferences, health goals and special health care needs, among others. Having such an individualized plan on hand will guide facilities on the path to delivering higher quality care.
Long-term care facilities are mandated to provide more training not only to regular members of the staff but also to contract workers and volunteers. Aside from the necessary medical and care skills, personnel must also be well-acquainted with the residents’ rights and how to properly communicate with them.
It is common practice for some facilities to discharge patients whose Medicaid payments are delayed. This is now prohibited as long as the residents have filled out the necessary paperwork. In the case of a discharge, a notification must be sent to the state ombudsman who can help resolve issues before a transfer is carried out.
Similarly, hospital dumping is no longer allowed. Hospital dumping usually happens to low-income residents whose care costs more than the Medicaid reimbursement that a facility receives. The nursing home first sends them to a hospital for a medical condition and, upon discharge from the hospital, the patient is refused readmission to the facility.
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