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⭒ New Developments

Court Orders DHS to Reissue Standard Admission Agreement

On March 21, 2007, Judge Charles Hayes of the San Diego Superior Court issued a writ of mandate ordering the California Department of Health Services (DHS) to revise and reissue the state’s nursing home admission agreement and implementing regulations. The court’s order stems from a lawsuit filed by the California Association of Health Facilities (CAHF) and three individual nursing homes that sought to strike down California’s newly established Standard Admission Agreement. Parkside Special Care Center v Shewry, Case No. GIC 860574.

A 1997 law — co–sponsored by CANHR and Bet Tzedek Legal Services — required DHS to establish and implement the nursing home Standard Admission Agreement by January 2000. It sought to give residents and their representatives peace of mind that the contracts they sign at admission protect their rights and do not expose them to unexpected costs or illegal liability provisions.

Six years overdue, DHS published regulations establishing a Standard Admission Agreement that all California nursing homes were required to use effective January 2, 2006. Shortly after it took effect, CAHF sued DHS, claiming the Standard Admission Agreement was unconstitutional and violated numerous laws. Following a preliminary ruling in the case, DHS suspended use of the Standard Admission Agreement on September 29, 2006.

Fortunately, the court’s March 2007 ruling rejects most of CAHF’s claims, including its constitutional challenge. The court granted a major victory to consumers by ruling that the Standard Admission Agreement is not required to include an arbitration provision. Many nursing homes coerce residents and their representatives into signing arbitration agreements that strip them of their right to a jury trial if they suffer abuse or neglect at the nursing home.

Prior to the March ruling, CANHR and a San Diego nursing home resident sought to intervene in the case due to serious concerns that the court’s proposed ruling would restrict residents’ rights concerning third–party guarantees of payment, room–to–room transfers, and moving out of a facility if a resident has Alzheimer’s Disease. CANHR was especially troubled that the proposed ruling endorsed nursing homes’ use of separate liability agreements to make residents’ relatives personally responsible for payment despite federal law against such agreements.

Judge Hayes denied CANHR’s intervention motion, but only after a lengthy hearing about these concerns. The action proved to be a great success because the judge’s final ruling favorably addressed each of our concerns. CANHR was ably represented by Eric Carlson of the National Senior Citizens Law Center and by Christopher Healey and Aaron Winn of Luce Forward, a private law firm.

The court’s March 2007 order (writ of mandate) requires DHS to fix several relatively minor problems with the Standard Admission Agreement and re–promulgate those provisions. A copy of the order is provided below. CANHR has urged DHS to quickly re–promulgate the Agreement, but it is unclear when it will be reissued.

Until the Standard Admission Agreement is reissued, nursing home applicants are in the same predicament they faced before its implementation. Upon admission to a nursing home, they will be required to sign an agreement written by the nursing home. In years past, facility–written admission agreements often contained deceptive or illegal terms.

Important California and federal consumer protections governing nursing home admission agreements remain in place. These protections are described in CANHR’s fact sheet on nursing home admission agreements. Call CANHR if you need additional information.

Click here to read CANHR’s fact sheet on Nursing Home Admission Agreements (pdf).

Click here to download the March 21, 2007 Writ of Mandate, Parkside v Shewry (pdf).