For many years we have counseled our clients against signing any form of binding arbitration agreement included as part of the full nursing home admission agreement. Such provisions reduce the rights of a nursing home resident to access all legal remedies available to him or her in the event of a abuse or neglect or have their rights violated. While often successful, on occasion nursing homes refused to admit an individual who declined to agree to arbitration.
Last week, the Centers for Medicare and Medicaid Services (CMS) posted its final rule for revising the requirements that nursing homes must meet to receive Medicare and Medicaid funding. It was the most significant revision of federal nursing home regulations in 25 years. The rule is 713 pages long and affects virtually every aspect of the lives of nursing home residents but one provision will likely have the greatest short-term impact:
“A facility must not enter into a pre-dispute agreement for binding arbitration with any resident or resident’s representative.”
Calling pre-dispute arbitration agreements “unconscionable” by their very nature, CMS has protected nursing home residents from signing away their rights to file lawsuits when they are subjected to abuse or neglect or have their rights violated. Arbitration agreements are used by nearly all nursing homes to ensure residents have limited options when they are harmed.
The pre-dispute arbitration agreement ban goes into effect on November 28, 2016. Agreements signed prior to that date are unaffected by the rule. The rule does not apply to assisted living facilities.
Aside from the ban on pre-dispute arbitration agreements, the new CMS rules include revisions to resident’s rights, discharge planning, as well as many other changes.
We will continue providing updates as the effects of these regulations become clearer.
You can read the full CMS nursing home regulations revisions at this link.