Nursing Home Arbitration Agreements Settle Disputes
November 13, 2019
A recent decision in favor of nursing home arbitration agreements waters down a 2016 protection that had been intended to defend the constitutional rights of nursing home residents. The arbitration agreements, which prohibit residents from seeking to settle disagreements with the care facility through the courts, establish a contract by which residents are bound to resolve any dispute that may arise through an arbiter chosen by the facility.
Problems with Arbitration Agreements
For the many families with a loved one in a nursing home, or those contemplating the decision whether to choose a long-term care facility for a family member, one of the most basic questions has to do with whether the care facility will treat the elderly patient well. While a person’s physical and medical needs certainly play a role in the overall quality of their treatment, fair treatment is also a necessity.
For years, nursing homes sidestepped this basic definition of quality treatment by stripping residents of a fundamental right as a matter of routine. Immediately, during the application process for admission into the facility, the initial paperwork would include a binding agreement that if a dispute arose between the resident and the facility, the parties would settle in arbitration.
This is problematic for several reasons. These agreements strip residents of their right to a trial by jury before any dispute arises. Supposedly, neutral arbiters are chosen by the facility, giving them unspoken incentive to side with the facility in proceedings to secure more opportunity for future work. Arbitration is not subject to the same transparency rules found in the court system, making oversight difficult. It is nearly impossible to appeal an arbitration decision, giving wronged residents no way to pursue justice.
A 2016 Challenge
In 2016, under President Obama, the Centers for Medicare and Medicaid Services (CMS) announced a new directive prohibiting nursing homes and long-term care facilities that accept Medicare and Medicaid from forcing residents to sign arbitration agreements as a condition of admission. Right away, industry groups filed suit against the new rule. A federal court in Mississippi issued an injunction that allowed nursing homes to continue the practice while the issue was worked out in the courts.
CMS reversed course in July 2019 under President Trump, proposing that the use of arbitration agreements be reinstated, though it does prohibit such agreements as a condition of admission. It also gives residents 30 days to withdraw from the agreement and bans agreements from forbidding reporting to government authorities. The new rule went into effect nationwide in September 2019, but several nursing homes in numerous states that are part of an ongoing lawsuit are exempt from the rule until the end of the year, while litigation continues.
Long Island Elder Law Litigation Attorneys at Korsinsky & Klein, LLP Represent Nursing Home Residents
If you know or suspect that an injury or death suffered by a loved one was due to the conditions of a nursing home, contact a knowledgeable Long Island elder law litigation attorney at Korsinsky & Klein, LLP to determine if you have a case against the nursing home for abuse or neglect. Whether you require representation in court or you are bound to the conditions of an arbitration agreement, we can help you prove your case. Contact us online or call us at 212-495-8133 for an initial consultation. With offices in Brooklyn, New York, and Lakewood, New Jersey, we serve clients throughout Manhattan, Long Island, and Westchester, New York.