Representative Linda Sanchez (D-CA) has reintroduced the Fairness in Nursing Home Arbitration Act.  This act seeks to ban pre-dispute arbitration agreements, even if the arbitration agreement is not required for admission. The parties could agree to arbitration only after a dispute arises.   When the bill was last introduced, and defeated, it included Assisted Living facilities as well as Skilled Nursing Facilities, but the text of the bill’s most recent iteration is not yet available for public review.  

Arbitration agreements have been circling back again and again as one of the most contentious debates in LTC Administration.  From a legal standpoint, arbitration almost assuredly means faster recovery time, and less cost for both plaintiff’s and defendants alike (or complaintents and answerers in the parlance of some Alternative Dispute Resolution folks).

 The at bottom question can be phrased like this: is LTC different from other business such that the only pathway to remedy must necessarily be one through the courts?  

Opinions are myriad, but I will be interested to see, and write about, the debate on Rep. Sanchez’ bill.

The much maligned Terminal Patients’ Right to Know End-of-Life Options Act has finally passed in California.  This was a law that was blasted by critics from every side when it was first introduced.  The final version, which takes effect on January1st  of 2009, creates a legal right in patients at that end of life to have access to information about number of end of life issues.  Included in these are Advance Directives, Hospice care, and pain and symptom management. 

Major opponents of the original language of the bill (which required doctors to discuss palliative care and refusing artificial hydration and nutrition for any patient with a prognosis of less than one year) worried that end of life patients would be given too much overwhelming information.  They feared the patient would not have a meaningful conversation with their doctor, and would only suffer mental distress when the physician ran through a checklist of end of life issues. 

The new language gives more discretion for when the conversation must take place and what is involved in it.  Essentially, the new law creates a right that can be engaged by the patient (they ask their doctor) instead of existing passively (the doctor gives the information whether solicited or not).  

This legislation is really the first of its kind in the US, but the changes in the law will probably not ensure information to a patient who wasn’t already going to get it.  What it does do is put end of life issues in the vanguard of legislative concerns – a turn of events which is both welcome and sorely needed.