By: Paul Lorah
Arbitration can block claims from court.
Centers for Medicare and Medicaid Services (CMS) has issued a final decision on a rule proposed in July of 2015 prohibiting binding pre-dispute arbitration agreements in facilities that accept Medicare and Medicaid patients.
Currently, all nursing facilities [including assisted living] have a clause in there admission agreements that force all claims into the private system of justice known as arbitration.
It is the first major overhaul of federal nursing home regulations in a quarter-century.
Last year, when the draft of the rule was first proposed it only required nursing homes that included binding arbitration agreements in their admission contracts to explain the agreements and ensure that patients acknowledge their understanding of them.
The final rule goes a giant step further with its prohibition. This rule will cover all claims against the facility including elder abuse, sexual harassment and even wrongful death and include cutting off funding to facilities that require arbitration clauses as a condition of admission.
“With its decision,” the New York Times wrote in its coverage, “[CMS] has restored a fundamental right of millions of elderly Americans across the country: their day in court.”
“The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care".
Lawyers who work with the elderly say that "people are being admitted to nursing homes at one of the most stressful moments of their lives. Distraught and often desperate for a room, prospective residents do not fully grasp what they are signing".
The new rule is scheduled to take effect on November 28 and will affect only future nursing home admissions; pre-existing arbitration agreements will still be enforceable.
Even after the new rule is in effect, after a dispute arises, the resident and the LTC facility may still voluntarily enter into a binding arbitration agreement if both parties agree.
Other provisions of the final rule are targeted at reducing unnecessary hospital readmissions and infections, improving the quality of care, and strengthening safety measures for long-term care facility residents.
Author Paul Lorah is a Medicaid and Long Term Care Planning expert who has authored such books as "Planning and Paying for Long Term Care' and "How to Get Medicaid to Pay for Your Long Term Care Costs".
Would you like your admission agreement reviewed? Contact us today 855.471.6771