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.