The Reality of the Nursing Home Admission Process
By: David S. Barmak, JD, CEO and
Betty Frandsen, MHA, RN, NHA, CDONA, FACDONA, C-NE, IP-BC
In the nursing home admission process, consideration of an arbitration agreement is not high priority for the individual being admitted or for the family dealing with the emotional trauma of placing a loved one into a nursing facility. What they all want to know is, “Will my mom or dad get better, and if that is not possible, will his or her needs be met? And will the staff be respectful of this person who means so much to me?” Most people have been exposed through the media reports to claims of abuse in nursing homes. That is a more weighty concern than a statement in the nursing home admission process agreement about arbitration, which the person may not even understand. Admission paperwork, including whether to sign a document that contains an arbitration clause or not, is a mere distraction on the way to getting the patient/resident settled comfortably into a room. Family members are dealing with fear of the unknown, guilt over not being able to care for the individual, financial concerns, and the stress of maintaining their personal and work commitments while carving out time for this new chapter in life that does not seem to come with answers.
The nursing home admission process, during which many papers are reviewed quickly and given an obligatory signature, often without full understanding, can be overwhelming. While this paperwork is necessary, once the resident is settled into his or her room, the nursing team and those from support departments place their focus on the resident’s needs. Absolutely none of the caregivers is thinking, “Did this person opt out of an arbitration agreement? Should that impact the care I give?” Staff members working with the resident come to work each day with a goal of doing their best in caring for the resident, no matter the resident’s payor type or the status of an arbitration clause.
Arbitration is used in many situations in our society. It is a common practice in divorce proceedings, for example, to have a mediator or arbitrator work out agreements amicably, with an appearance before a judge occurring only after arbitration fails. For Centers for Medicare and Medicaid Services (CMS) to issue a blanket statement that arbitration clauses must be excluded from admission agreements opens the door to costly and adversarial court cases. There are known law firms that intentionally target nursing homes in states where the laws make it easy to obtain large settlements. Who is benefiting in that case?
An article by Bill Myers published in the September 2015 Provider Magazine reported on the wealth accumulated by law firms that are regularly trolling for clients through television advertising and billboards that draw in families who might otherwise not have considered suing a nursing home. Myers reported that in Kentucky, the average provider loses more than 14 cents for every Medicaid dollar received because of tort cases. The average payout per suit is more than $450,000. Kentucky reportedly is a state where it is highly advantageous for law firms to litigate. Myers reports that the Arkansas law firm of Reddick Moss Trial Attorneys based in Little Rock has built a lucrative business on suing nursing facilities in vulnerable states. The firm’s senior partner estimates the firm’s income from nursing home suits at more than $100 million in the past 10 years. Of that huge number, the attorneys received from one third to one half of the dollars – a great motivator for perfecting the art of suing nursing homes.
In conclusion, the CMS decision to mandate exclusion of arbitration clauses from admission agreements hands the power to attorneys who earn a sizable income representing plaintiffs in situations that could more easily be resolved through arbitration. We can take comfort in the reality that every day in nursing homes across our nation, the staff are doing their very best to comply with regulations while meeting the needs of countless residents. Our primary focus should remain on continuously improving quality so that neither an arbitration nor a law suit is needed.
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