Push to Ban Arbitration Clauses in Nursing Home Admissions

Nursing Home Admissions and Banning ArbitrationPlacing a loved one in the care of skilled nursing professionals has always been an overwhelming process where families are presented with stacks of papers and documents to sign, including a commonplace admission agreement. In many incidences, the family is only given the instruction to “just sign here” to have a loved one admitted into the nursing facility.

However, if the U.S. Congress has its way, understanding the comprehensive arbitrary agreements in place to be admitted into nursing facilities may be getting easier. This is because a federal regulation proposal that was initiated in 2015 will require nursing facilities to explain arbitration agreements to resident candidates and family members so that everyone knows what they are signing before admittance. The proposal would also ensure that agreeing to arbitration between the resident and nursing facility would not be a requirement for admittance into the nursing home, but merely an option to handle unresolved disputes.

Rules Affecting Medicare-Approved Facilities

The proposed federal regulation would revise current long-term care facility requirements that fall under Medicare and Medicaid programs. The proposed rule would be an integral solution of making broad-based improvements to provide quality health care and enhance patient safety and well-being while reducing procedural burdens on coverage providers.

Nursing home representatives, including American Health Care Association (AHCA), are pushing back against the proposed change of rules by arguing that arbitration agreements are commonplace in healthcare industry as an acceptable way to do business. They propose that these agreements are already successfully utilized in surgical centers, hospitals and doctors’ offices without problems. Other opponents of the proposed rule believe that the changes will create legal gray areas for both the nursing homes and patients involved. Rather than making the rule of arbitration agreements mandatory, the AHCA would rather they be made voluntary to help nursing facilities avoid the cost of expensive litigation.

Even with changes, family members and applicants hoping to be admitted to a nursing facility might feel as though they have no other option but to sign a voluntary agreement as the only clear pathway to be admitted to the nursing home. Some individuals believe that with or without the new proposed rule the facility will maintain the upper hand during admittance and preserve their advantageous bargaining power during the process. In many ways, the resident or family member might likely feel coerced to sign the agreement even if better options are provided.

In addition, without adequate training, administrators assigned to provide a full explanation of the arbitration agreement to a resident candidate or their family members might not provide a neutral environment, which in the end could result in fraudulent complaints. Another problem is that average individuals looking to be admitted to a nursing facility might believe that the arbitration agreement is just a portion of the admissions package and is required under the law, no matter how well all options are explained. The Centers for Medicare and Medicaid Services believe that the proposed rule over the arbitration agreement should not be a part of the packet with other paperwork and agreements.

Saying No to Arbitration

Waiving the right to have a jury trial to resolve an unsettled dispute seems like a bad position to be in for a resident or family member of a loved one in a nursing facility. Agreeing to an alternative way to resolve the dispute through an arbitration clause and giving up the right to a jury trial might put severe limitations on dealing with some serious problem that may arise while residing at the facility.

Residents and family members who have already signed a binding arbitrary agreement might still have a way out. Skilled personal injury attorneys who specialize in nursing home negligence cases might be able to review and evaluate applicable arbitration rules to ensure there are significant due process safeguards in place. In some cases, these agreements do not require the nursing home resident to waive their rights in filing complaints against the nursing home or seek a hearing. Usually, only the skills of a competent attorney who specializes in arbitration agreements, nursing home abuse, financial exploitation or neglect will likely have the legal experience to handle a complex case.

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Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa
After I read Jonathan’s Nursing Home Blog, I decided to hire him to look into my wife’s treatment at a local nursing home. Jonathan did a great job explaining the process and the laws that apply to nursing homes. I immediately felt at ease and was glad to have him on my side. Though the lawsuit process was at times frustrating, Jonathan reassured me, particularly at my deposition. I really felt like Jonathan cared about my wife’s best interests, and I think that came across to the lawyers for the nursing home. Eric