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The case for care transparency

November 1, 2008
by Bob Gatty
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When the new Congress gets down to business early next year, organizations representing the nursing home community will be confronted with two controversial proposals advanced by consumer groups and pushed in 2008 by leading members of both parties.

In late September, Rep. Pete Stark (D-Calif.), chairman of the House Ways and Means Health Subcommittee, and Rep. Jan Schakowsky (D-Ill.) introduced the Nursing Home Transparency and Quality of Care Improvement Act of 2008, which would require corporations that operate nursing homes to disclose their owners, operators, financiers, and other related parties, among other provisions.

According to a press release from Stark's office, “The bill increases the transparency of nursing home ownership, ensures that residents and their families have information about the quality of care at these facilities, and strengthens enforcement of nursing home compliance with quality care standards.” The bill is a companion to S. 2641, introduced by Sens. Charles Grassley (R-Iowa) and Herb Kohl (D-Wisc.).

The second key issue on which nursing home interests are expected to do battle in the new Congress is the Fairness in Nursing Home Arbitration Act, sponsored in the Senate by Kohl and Sen. Mel Martinez (R-Fla.), and in the House by Rep. Linda Sanchez (D-Calif.).

That measure, which would prohibit predispute of arbitration agreements with residents of nursing facilities or assisted living residences, in early October was awaiting a vote in the House after being reported by the House Judiciary Committee September 26. A similar bill was cleared by the Senate Judiciary Committee on September 11. However, with election campaigns looming, it appeared at presstime that there would be insufficient time for final Congressional action.

Ad campaign

Meanwhile, the American Health Care Association (AHCA) announced on September 12 a new advertising campaign to promote its commitment to quality care, clearly an effort to help bolster public opinion when these and other key issues, including funding and other possible regulatory matters, come before Congress next year. One ad in the series states: “The quality of care in America's skilled nursing facilities is improving. Thanks to advances in care and ongoing commitment to excellence, our nation's skilled nursing facilities are providing top-level care and rehabilitation to millions of Americans, helping seniors return to their own homes and communities. The long-term care profession is proud of enhanced quality care. In order to sustain and build upon quality advances, we need an ongoing partnership with government and stable resources to ensure care and rehabilitation for our nation's frail, elderly, and disabled.”

“We are pleased with our community's collective and individual accomplishments to improve quality,” said Bruce Yarwood, president and CEO of AHCA. “Every one of our nation's nursing home residents deserves the highest quality nursing home care and we are committed to creating a long-term delivery system that ensures access to high quality care and encourages ongoing improvement.”

Dangerous precedent

The arbitration bill, according to its Senate sponsors, is designed to “protect senior long-term care residents who unwittingly sign away their constitutional right to have their case heard by an impartial judge or jury.” The measure, they said, requires that agreements to arbitrate nursing home disputes be made after the dispute has arisen. It does not, they said, prohibit arbitration in nursing home disputes, but will prevent a nursing home corporation from forcing residents and their families into arbitration through a non-negotiable contract entered into prior to the dispute.

However, AHCA and several other organizations sent a letter to members of the Senate Judiciary Committee on September 10 warning that the bill would establish “a dangerous precedent for the entire U.S. business community by eliminating the reasonable, intelligent use of arbitration agreements,” and called for them to support the right of every consumer to voluntarily arbitrate legal disputes. The bill, they said, would “effectively eliminate the use of predispute arbitration agreements by nursing facilities, assisted living communities, and all housing service providers nationwide—even if the patient, resident, or their family wishes to enter into such an agreement. The inherent right of every consumer to voluntarily arbitrate disputes should not be restricted,” they said.

Seventeen industry and business organizations signed the letter, including the U.S. Chamber of Commerce, the National Taxpayers Union, the National Center for Assisted Living, and organizations representing various sectors of the SNF industry. That initiative drew the wrath of the consumer's group, Public Citizen, which sent the committee a letter signed by more than 100 organizations from 30 states opposing the bill. “It's appalling that the nursing home industry is fighting against senior citizens under the banner of consumer protection,” declared David Arkush, director of Public Citizen's Congress Watch division.

Clearly, the battle lines over this legislation are drawn and, barring late action by Congress this year, the issue will undoubtedly be pursued in 2009.

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