Friday, September 30, 2016

New federal rules for long-term care homes are very extensive, will require more diligent state monitoring

by Larry Geller

New federal rules that are to take effect November 28 will prohibit pre-dispute binding arbitration agreements for long-term care facilities that receive federal funds—usually Medicare or Medicaid. Removing these clauses, which prevent families from suing, is very appropriate and welcome. This applies to new admissions only, after the effective date.

But the rule brings extensive changes in other areas, and it will be necessary to closely monitor whether long-term care facilities have made the changes necessary to comply. For example, surveyors may have to determine if staffing is sufficient to provide food to residents that is served at an appropriate temperature and in an appetizing form and is sufficient to prevent unintended weight loss and dehydration. That is just one new requirement of the new federal rule, but it illustrates that enforcement will not be a matter of simply taking a quick glance around the facility.

Hawaii’s Department of Health will have to drastically revise its lax attitude toward protecting residents of long-term care facilities

Kokua Council currently is suing the DOH to compel it to post inspection reports as required by state law.

DOH has declined to carry out unannounced inspections, which are the best way to uncover violations of these or prior state or federal rules.

It is also grossly underfunding the office of the Longterm Care Ombudsman to the point where the office cannot fulfill its mission to handle complaints related to the state’s 12,300 residents living in 1,700 long-term facilities.

The new rules are posted for download below and can be read on-line. Here are some highlights, which may not give a complete view of the changes—the document is 713 pages long, including comments and responses.

Mandatory arbitration prohibited in new agreements

This rule change applies to new agreements and does not prohibit arbitration in new disputes, if both parties choose that procedure. What the rule prohibits is pre-dispute arbitration clauses—that is, the prohibitions against court action that may be typically found in care home agreements. Again, these rules apply only to facilities receiving federal funds.

When a spouse or relative has to be admitted to a care home, the entire process is extremely traumatic for the family. Often, decisions have to be made on very short notice and without time to understand all the implications of the papers that must be signed. So requiring a family to sign away their right to sue in the event that a care home seriously injures their loved one is predatory.

The knowledge that there is an arbitration clause may lead some homes to take fewer precautions to ensure good care, knowing that they cannot be sued.

Families are not equipped for and cannot usually afford to go to arbitration. The process is also inapproriate to handle claims of neglect such as might arise, and which would be far more common in a care situation than the monetary claims typically seen in commercial or consumer arbitration instances.

Changes in facility and procedure requirements

This short summary touches on only a few changes and is not intended to be comprehensive. If there are errors in the points below, they are mine.

The new rule mandates changes in newly constructed, reconstructed, or newly certified facilities including:

  • Bedrooms must accommodate no more than two residents
  • Each resident room must have its own bathroom equipped with at least a commode and sink

Changes for all long-term care homes include:

  • Each resident room must be equipped with or located near toilet and bathing facilities
  • The facility must be adequately equipped to allow residents to call for staff assistance through a communication system which relays the call directly to a staff member or to a centralized staff work area from each resident’s bedside, toilet and bathing facilities
  • The rule includes changes in personnel responsible for infection control
  • The facility must ensure that meal service is provided to meet residents’ clinical and nutritional needs

A table in the rule document summarizes all the changes.

Download New CMS Nursing Home Rule from