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Centers for Medicare/Medicaid Services (CMS) Releases New Nursing Home Regulations


elderly person

On September 30, 2016, CMS, which is part of the Department of Health and Human

Services (HHS) and which is the agency responsible for administering Medicare,

Medicaid, and other programs, issued new nursing home regulations. There are

several important updates, of which I will highlight two:


1. Prohibiting Pre-Dispute Arbitration. There is a string of cases in Florida which

struck down nursing home arbitration clauses contained in admission

agreements in Florida, but there were always variations on facts that could

make them distinguishable from the situation at hand. Now, CMS has

definitively prohibited mandatory arbitration provisions in nursing home

admission agreements which are a condition of admission. Arbitration will

only be allowed when the parties agree to arbitrate their disputes after the

events at issue took place. This rule is effective November 28, 2016. This is

important as arbitration is costly, deprives a litigant of his or her right of access

to the courts, is binding and many times the arbitration panels were comprised

of individuals in the nursing home industry who would be biased in favor of

nursing homes. In the past, I would advise clients to cross through the

arbitration provisions in the admission agreement. Now, it is clear that these

are invalid and nursing homes should not be including them in their admission

agreement. Until November 28, 2016, I would still advise clients to not sign any

admission agreement that contained a mandatory arbitration provision.


2. Improvements to Discharge Procedures. Discharge and transfer based on

non-payment of nursing home bills is not allowed when the resident has

submitted paperwork to a third party payor such as Medicaid or a Long Term

Care Policy and the payor is evaluating the claim for payment. The

regulations also limit a nursing home’s ability to refuse readmission of a

resident after the resident was admitted to a hospital. The nursing home will

require the facility to follow the transfer-discharge procedures when the

facility claims a recently hospitalized resident cannot return to the facility.


A Primer On Transfer/Discharge Rights


It is important to know that under Florida law, there are only three reasons a facility

can discharge a resident from a nursing home: 1) For medical reasons; 2) For the

welfare of other residents; 3) For non-payment of a bill after a 30 day notice. The

Florida statute specifically states that a nursing home may NOT discharge a patient

because the source of payment has changed (i.e., from private pay or Medicare to

Medicaid).


Under the federal regulations, there are six reasons that a nursing home can

discharge a resident: 1) The transfer or discharge is necessary for the resident's

welfare and the resident's needs cannot be met in the facility; 2) The transfer or

discharge is appropriate because the resident's health has improved sufficiently so

the resident no longer needs the services provided by the facility; 3) The safety of

individuals in the facility is endangered; 4) The health of individuals in the facility

would otherwise be endangered; 5) The resident has failed, after reasonable and

appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at

the facility. For a resident who becomes eligible for Medicaid after admission to a

facility, the facility may charge a resident only allowable charges under Medicaid; or

6) The facility ceases to operate.


There are also requirements for the form of the discharge notice and certain

information it needs to contain.


If you feel that you or a loved one has been wrongfully discharged from a nursing

home facility in Florida, you should file a Request for Fair Hearing within ten (10) days

of the date of the notice, then the discharge MUST be stayed pending the outcome

of the administrative hearing.

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