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Nursing Home Admission Agreements: A Follow-Up

My lecture at the North Carolina Healthcare Facilities Association Mid-Year Meeting on nursing home admission agreements, and the article on that same topic we published in the August/September issue of Shorts, generated a fair number of emails and questions. My comment in August that nursing facility providers should review their admission agreements and update them where necessary led some of our readers to ask if the laws or CMS policies governing admission agreements have changed. The answer is no.

However, we find that many SNFs have outdated and often confusing admission agreements. From our review of SNF admission agreements over the years, it appears that many of these documents have been “patched” together. Providers often start with a pretty good basic admission agreement, but over time, providers tack on language or addenda as laws change, CMS issues new policy directives, or providers change operations. For example, you may have added new provisions addressing HIPAA or explaining Medicare Part D. That’s fine as long as the revisions are properly incorporated into your existing agreement in a logical fashion that doesn’t create conflict with other existing language.

And a lot of the agreements we see have a frightening number of attachments at the back of the agreement. Typical attachments include an array of acknowledgments that residents are asked to sign, evidencing that they’ve been given required notices, copies of select policies and procedures, and explanations of various state or federal laws such as the federal residents’ rights language from OBRA.

There’s nothing wrong with “patching” up your admission agreement or adding attachments as the need arises. Nothing, that is, unless your “patches” and attachments have become so numerous that they are unwieldy. We recently saw a provider’s admission agreement that consisted of a basic 10-page admission contract and 15 different attachments, many of which required the resident’s and/or family’s signatures. That many different pieces of paper, and that many signatures, complicate the admission agreement and process; create the risk that something will be overlooked during the admission process; and put a burden on residents, families, and your admissions staff, just from the sheer number of papers they must sign or handle. We also recently saw a one-page admission agreement. It’s pretty hard to imagine that a one-pager can address the many complex issues that residents and families need to be aware of as part of the admissions process.

So, my point at the Mid-Year Meeting lecture and in the August/ September Shorts article was just this—it’s a good idea to periodically review your admission agreement, just as you would any other important document. When you do that, here are a few questions to help guide your review and help you decide if it might be time for some revisions: 

  • Are all the provisions still current and applicable? We sometimes find that admission agreements contain language that’s inconsistent with a provider’s current operations or services, or that’s just plain outdated or inconsistent with current law. 
  • If you have multiple attachments to the agreement, can you pull most of those into the main agreement? Generally, the answer is yes. Virtually everything you need to include as part of an admission agreement can and should be in the main document. Attachments should generally be limited to those items or issues that change frequently, such as certain types of charges (i.e., private pay charges; items not covered by Medicaid or Medicare, such as beauty and barber treatments; etc.). For those issues, attachments serve the purpose of allowing you to update your document without constantly revising the main admission agreement. Likewise, many of the acknowledgements that providers often attach at the back of the admission agreement as separate documents can be handled with a simple list of items in the main agreement that the resident and/or family have been provided (such as resident handbooks, explanations of Medicaid and Medicare, the list of resident rights, etc.). Then, when they sign the admission agreement, they are also acknowledging receipt of the items listed in the agreement and don’t have to sign multiple attachments or acknowledgements. 
  • Does your agreement include an arbitration clause? If so, that document probably should be a separate, freestanding document, based on court cases across the country suggesting that these agreements should not be buried in large admission agreements, where they might be overlooked by residents and families. 
  • Does your agreement include a “responsible person” agreement? We recommend this, since there has been confusion over the years about what a responsible person can and can’t be asked to agree to, or confusion by responsible persons over the extent of their role and liability. A simple two-to-three-page responsible person agreement can avoid that confusion.

SNF admission agreements have become more complex over the years, as the laws have changed and the list of issues that providers must explain to residents and families has grown. Still, a comprehensive, well-written, accurate admission agreement is critically important for residents, families, and providers.

© 2009 Poyner Spruill LLP. All rights reservedNational Law Review, Volume , Number 231

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About this Author

Kenneth L. Burgess, Health Care Litigation Attorney, Poyner Spruill Law firm
Partner

Ken is a health care attorney with more than 28 years of experience advising clients on a wide range of regulatory, reimbursement, litigation, compliance and operations issues.  His practice has focused heavily, but not exclusively, on issues affecting long term care providers.  He has advised them on a wide variety of legal planning issues arising in the skilled nursing facility setting, assisted living setting, hospice, home health and other spheres of long term care. He also frequently represents ancillary service providers (pharmacy, DME, therapy and similar...

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