Arbitration Clauses at Nursing Homes Face a New Ban

Posted On: October 13, 2016 under

In the biggest change to nursing home regulations in 25 years, the Centers for Medicare and Medicaid Services has just banned binding pre-dispute arbitration agreements from nursing home contracts. In addition to banning these arbitration clauses, they have also passed rules requiring homes to serve a range of foods that meet all residents’ dietary needs, to have a targeted program to address infections and their potential spread and to create comprehensive care plans for every resident within two days of that resident moving in. Further regulation updates are also included and focus on additional crucial things such as staff training and elder abuse.

Although all of these issues affect the health and wellbeing of those who live their later years in nursing homes and long-term care facilities, it is probably the change to arbitration agreements that marks the biggest break from current practice. These agreements essentially take away a person’s right to pursue a lawsuit in the event of abuse, mistreatment, or even wrongful death, and it is fairly common to find them either required for admission or mixed in among the other required paperwork so that the resident or the resident’s family sign them unknowingly. After signing an arbitration clause, it is impossible to get a case heard by a jury; instead, it must be dealt with in arbitration, which means that the case is brought before an impartial third party and each side has a chance to present their evidence. The arbitrator then makes a ruling on the case, and it is considered final. There is no chance to appeal.

The nursing home industry is displeased by this new rule, saying that arbitration is faster and less expensive than litigation and therefore is better for homes that are already cash-strapped. However, advocates for the elderly are satisfied, citing multiple past cases in which arbitrators were found to be lawyers who represented the very homes who were accused of misconduct, meaning they were not sufficiently impartial. Advocates also cite the fact that cases that are decided in arbitration are frequently sealed so that the public has no access to them, leaving potential residents and their families unaware of serious charges brought against a home. Add to that the fact that residents often don’t know what they’re signing, and it seems like some homes are aiming to protect themselves at the expense of the vulnerable population they are supposed to assist.

Now that nursing homes can’t receive any federal funds if they require incoming residents or their families to sign arbitration agreements, though, these sorts of deceptive practices should end. The new regulations will be implemented in pieces, given the number of changes, starting this November.

If you suspect nursing home abuse, contact a dedicated Chattanooga nursing home abuse attorney who can represent your loved one.