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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