Tuesday, April 2, 2019
Following up on Katherine's important post, I was noticing a couple of news items regarding nursing home regulation I wanted to share. A couple of weeks ago Bloomberg Law ran this article, Nursing Homes Want Care Disputes Kept Out of Court to Curb Costs. The article focuses on the use of pre-dispute arbitration clauses in nursing home admission contracts. You may recall that CMS was going to ban their use but the current administration changed directions. "The White House Office of Management and Budget is reviewing a Health and Human Services regulation that would allow nursing homes that receive Medicaid and Medicare funding—which is nearly all of them—to enforce those “pre-dispute” arbitration clauses. The Trump administration proposed the change in June 2017."
It's no surprise when I tell you that there are those supporting the use of pre-dispute arbitration clauses and those that oppose them. AARP's legislative policy arm has opposed the current administration's position on their use, arguing "that the provisions of [Trump’s] proposed rule would very likely have dangerous and harmful impacts on nursing home residents, as well as their families.”
As the use of mandatory pre-dispute arbitration clauses in contracts grows, there is some push back. "Arbitration clauses are commonplace in contracts for cellphones, credit cards, gym memberships, and other services, but there’s a growing movement to limit their use. Last month, House Democrats introduced the Forced Arbitration Injustice Reversal Act, which would ban mandatory arbitration clauses in consumer, employment, and other contracts."
Congress, at least in 2017, and the current administration seem to be in favor of the use of the clauses, since in 2017 the Republican members of Congress "voted to repeal a Consumer Financial Protection Bureau rule banning mandatory arbitration clauses in financial contracts" which the President signed into law.
Admittedly, there are advantages to arbitration for certain kinds of cases. Whether they are appropriate for resolution of cases involving nursing home residents is one of those "agree to disagree" issues for many.
Then last week, the Washington Post published an opinion, The hidden victims of Trump’s deregulatory agenda: Nursing home residents looks at the impact of the changes from the administration, specifically "[t]he number of per-day fines plummeted. The ban on mandatory arbitration was blocked. [The President] even delayed the enforcement of new health and safety requirements by 18 months, much to the delight of the nursing home industry."
Regarding the drop in fines, so what does this mean? The author says this means "less accountability for nursing homes that treat their residents poorly. The Kaiser Family Foundation recently published an analysis that found that under the Trump administration, the average fine levied against nursing homes that have endangered or injured residents dropped from a high of $41,260 in 2016 to $28,405 in the first quarter of 2018. That may not look like an enormous dip, but that average likely reflects a shift back toward levying one-off fines for violations."
CMS disagrees. Although the amount of penalties may have decreased, they point out that the number of fines being issued has gone up. The author takes a contrary view, " the Kaiser analysis found that the administration has issued fewer penalties in cases in which nursing homes put residents in immediate jeopardy of harm. And the fines CMS did issue averaged 18 percent less than the ones levied at the end of the Obama administration."
For those Special Focus Facilities, one expert offers that "the Trump administration has largely pulled back its enforcement of them, issuing increasingly small fines even though the government continued to cite them for serious violations, according to [the expert's] most recent analysis of CMS data in January."
This is an important issue and one that is far from being resolved. So, stay tuned.