Don’t Allow Binding Arbitration in Nursing Home Agreements

www.NAELA.org

It’s very disheartening to see CMS’s about-face. The truth is individuals who need nursing home care are often under extreme duress to get admitted and cannot imagine they will be subject to the opposite…

Historically, many nursing homes have required binding arbitration clauses as a condition of admission, robbing residents who have been victims of abuse or neglect of their constitutional right to a jury trial.

Last year, CMS banned these provisions, recognizing after lengthy administrative proceedings that pre-dispute arbitration provisions in nursing home contracts are “unconscionable.” These regulations would apply only to those facilities that seek payment for services under Medicaid and Medicare. Some in the nursing home industry sued and won a preliminary injunction against the ban. In June, CMS announced it would no longer defend the rule in court and issued this latest proposal.

Read NAELA’s comments to CMS.

“It’s very disheartening to see CMS’s about-face. The truth is individuals who need nursing home care are often under extreme duress to get admitted and cannot imagine they will be subject to the opposite: physical violence, sexual abuse, or extreme neglect when they arrive,” said NAELA President Hyman G. Darling, CELA, CAP.

One concern is that arbitration resolves disputes away from the public eye by a private decision-maker instead of by a judge or jury, keeping abuse hidden.

According to the letter, “if CMS cannot elucidate a precise reason as to why residents would now be better off giving up their rights before they might fully realize what they have lost, it cannot categorize this reversal as an improvement over anything.”

NAELA sent a letter in 2015 calling on the agency to ban these provisions. NAELA also joined a large number of consumer advocates in a larger sign-on letter to the new proposal.

About NAELA

Members of the National Academy of Elder Law Attorneys (NAELA) are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with disabilities. Established in 1987, NAELA is a non-profit association that assists lawyers, bar organizations, and others. The mission of NAELA is to establish NAELA…

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