Federal agency is making a big change to nursing home admission

OKLAHOMA CITY -- If you have ever moved a loved one to a nursing home, you know about the giant stack paperwork that needs to be signed upon admission.

For most, the fine print contains a forced arbitration clause, which means if something goes terribly wrong, your family cannot sue.

It's called "binding arbitration" and it was the norm in Oklahoma and around the country.

The Centers for Medicare and Medicaid Services (CMS) has now ended the practice saying in their ruling, "We are convinced that requiring residents to sign pre-dispute arbitration agreements is fundamentally unfair."

34 U.S. senators backed the CMS ruling.

Attorney Noble McIntyre calls arbitration a largely secret process, heavily weighted in favor of the facility.

"Most (arbiters) are attorneys, but you've got to remember, if you're getting 95% of your business from one client, you're going to lean toward that one client," said McIntyre. "If you have a panel of arbiters who are getting the majority of their business from a couple of facilities, what's their independence there? That's something you have to worry about."

Nursing homes around the country fought the change, saying the federal government over-stepped their boundaries in the ruling.

These facilities are historically underfunded by Medicare and Nico Gomez, the president and CEO of the Oklahoma Association of Heathcare Providers, believes the cost of care will go up.

"I think anytime we raise the cost of providing care, in this case raising the legal cost, then we put nursing homes at risk of closure," Gomez said.

The Oklahoma State Department of Health will regulate the new policy. OSDH is waiting for guidance from CMS.

"So at this time, we are waiting for that additional guidance to come from Medicare/ Medicaid services," said OSDH Legal Counsel Don Maisch. "When we receive that, that is what we will do."

Binding arbitration is no longer required for admission.

But, if it's already in a contract, it stays unless a patient requests a new contract or moves to a new facility.

"I would think long and hard about pulling them out and putting them in another facility or taking them home for awhile and re-admitting under the new rules," McIntyre said. "If your loved one is already in a nursing home and they signed that as a prerequisite, that agreement is in place unless your loved one is removed from that facility and moved to another or taken home for awhile and re-admitted."

Under the new rules, arbitration is allowed, just not required for admission.

"If something happens to them, they still have a right to hold accountable the people who caused that harm," McIntyre said.