In a recent decision in Strausberg v. Laurel Healthcare, the Supreme Court of New Mexico held that state courts cannot treat nursing home arbitration agreements differently than other contracts. Prior to this ruling, a New Mexico Court of Appeals held that because potential residents are “at their most vulnerable” when signing an arbitration agreement to enter a nursing home, the nursing home should always have the burden of proving the agreement is conscionable and thus enforceable. Typically, however, only the party challenging a contract or agreement has the burden of showing it is unconscionable and thus unenforceable.

The New Mexico Supreme Court cited the Federal Arbitration Act (FAA) as preempting the state appellate court ruling. Under the FAA, arbitration agreements must be enforced unless they are shown by the party challenging them to be invalid under basic contract law principles. Consequently, the Supreme Court remanded the case back to the appellate court where the resident, as the challenger, would have the burden of showing the nursing home’s arbitration agreement is invalid on a contract law theory.

Similarly, in Ohio, a nursing home resident seeking to invalidate an arbitration agreement would have the burden of proving the agreement does not comply with state common law. Unconscionability represents the primary state common law grounds for revocation of an arbitration agreement. Ohio courts have established several guidelines for determining whether an arbitration agreement is unconscionable and thus unenforceable.

If you or your company have concerns about whether a certain arbitration agreement is enforceable, feel free to contact DLM Legal for more information at 216.635.0002 or info@dlmlegal.com.

On July 9, 2013, the Centers for Medicare and Medicaid (CMS) issued a new rule requiring nursing and skilled nursing facilities to implement written agreements clearly defining their relationships with hospice providers. CMS adopted this rule, located at 42 CFR § 483.75(t), in order to improve the efficiency and quality of hospice care provided to nursing home residents. The specifics of the rule are aimed at avoiding conflicting services while fostering coordination between nursing homes and hospices.

Under the new rule, a nursing home that provides hospice services through one or more Medicare-certified hospices must have a written agreement with each hospice that is signed by an authorized representative of the hospice and an authorized representative of the nursing home. The agreement must be executed prior to furnishing hospice care to any nursing home resident and include the following:

• A listing of the services the hospice will provide
• The hospice’s responsibilities for determining an appropriate plan of care
• A listing of the services the nursing home will provide
• A description of the communication process between the home and the hospice
• A provision stating that the hospice assumes responsibility for determining the appropriate course of hospice care
• A statement that the nursing home has the responsibilities of furnishing 24-hour room and board care, meeting the resident’s personal care and nursing needs in coordination with a hospice representative, and ensuring that the level of care provided is appropriately based on the individual resident’s needs
• A delineation of the hospice’s specific responsibilities (e.g. counseling, pain medication plans)
• A provision requiring the nursing facility to immediately report to the hospice administrator all alleged violations involving mistreatment of a resident
• A delineation of the responsibilities of the hospice and the nursing home to provide bereavement services to the nursing home’s staff

A provision requiring the nursing home to notify the hospice immediately of the following:

• Significant changes in the resident’s physical or emotional status
• Clinical complications that suggest a need to alter the resident’s plan of care
• A need to transfer the resident from the facility for any condition
• The resident’s death

In the wake of the United States Supreme Court’s recent decision to strike a federal provision which denied federal benefits to same-sex couples, the Centers for Medicare and Medicaid Services (CMS) has issued a memorandum dated June 28, 2013 regarding resident visitation policies in Long Term Care (LTC) facilities. All Medicare and Medicaid-certified nursing homes are now required to extend the same spousal visitation rights to its residents regardless of sexual orientation.

Under current regulations, all residents of LTC facilities must be advised of their right to receive visitors consistent with their expressed preferences on a 24-hour basis. LTC facilities must ensure that all residents are given full and equal visitation privileges, including visits from spouses (including same-sex spouses), domestic partners (including same-sex domestic partners), other family members, and friends. Such privileges are subject to “reasonable restrictions,” however, in order to protect the security of the facilities residents, such as denying access to those engaging in disruptive behavior. Surveyors evaluating an LTC facility are instructed to interview residents and family members in order to ascertain whether residents understand their rights as it pertains to visitation and whether the facility has limited or restricted visitors against resident wishes and outside of any reasonable restrictions. Facilities that fail to ensure these rights may be subject to penalties and fines.

You can read the memo at the following address: http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-42.pdf.

To learn more about these regulations, contact an attorney at DLM Legal today at info@dlmlegal.com or 216.635.0002.