Care needs for our aging population is at an all-time high. While the days of an older person “living out their days” in a nursing home are long gone, we as a society still have a need for such care. Those in nursing homes truly are in need of round-the-clock care. Given the person’s situation, there may be no other way to remain safe.
So a family finds the loved one a place in a nursing home and begins to learn the rules and laws that pertain to this highly regulated form of health care delivery. Feeling re-assured that the loved one will be cared for, the family convenes in the nursing home manager’s conference room to sign papers.
These papers are legally binding documents.
They should be read and understood before they are signed.
Why? Because one of them, written in sophisticated legal terminology, will be the family’s acknowledgment of the process of arbitration that governs complaints against the nursing home and its employees. Members of Congress want to change this.
Actually, there is a strong proposal in Congress right now for revising and updating all sorts of federal nursing home/skilled nursing facility regulations. Many address issues we hear when a concerned family member calls our office in search of guidance or representation on behalf of their loved one.
Current rules do not require intake personnel to explain the rules regarding complaints and dispute resolution very well. But they do require that before a new resident can be admitted, a form must signed by the Responsible Party (family member) that agrees to an arbitration standard that becomes very expensive very quickly.
With regard to the proposed revisions, the following points (quoted directly from the Federal Register) would become the new practice. They aren’t great, but they’re better than what is in on the books right now.
- Specific requirements for the facility and the agreement itself to ensure that if a facility presents binding arbitration agreements to its residents that the agreements be explained to the residents and they acknowledge that they understand the agreement;
- The agreements be entered into voluntarily; and arbitration sessions be conducted by a neutral arbitrator in a location that is convenient to both parties.
- Admission to the facility could not be contingent upon the resident or the resident representative signing a binding arbitration agreement.
- The agreement could not prohibit or discourage the resident or anyone else from communicating with federal, state, or local health care or health-related officials, including representatives of the Office of the State Long-Term Care Ombudsman.
Resolving complaints via arbitration instead of the court system is sometimes an efficient approach. However, it shouldn’t be the only approach.
So, while the proposal making the rounds in Washington, D.C. is lining up its supporters and detractors, we can expect that changes made to improve the consumer experience may come at a cost. There will likely be limits to the facility’s exposure in most cases, thereby ensuring that the “cost” of delivering services is not driven up by settlement decisions.
Senators Franken (D-MN) and Baldwin (D-WI) are on board in the Senate.
We’re staying focused on this issue and will provide updates. No one ever said getting old is easy.