New rules on whether a nursing home can force you to sign binding arbitration
Yesterday the federal government released what will be the new rules on pre dispute binding arbitration to either get into a nursing home (long term care facility) or to continue to receive care at a nursing home.
Let’s unpack this as follows:
- What do these terms mean?
- What’s the history of the rule on binding arbitration in nursing homes
- What are the new rules now
- Things you should consider if you feel your loved one has been abused or neglected in a nursing home
You can find the new rules here — https://www.federalregister.gov/documents/2019/07/18/2019-14945/medicare-and-medicaid-programs-revision-of-requirements-for-long-term-care-facilities-arbitration. Note this is unpublished as of right now it should be officially published tomorrow (July 18, 2019).
What do these terms mean?
Pre-dispute: this means before there is any controversy or argument both sides agree to something. What is it they agree to?
Binding: this means whatever decision that is made is final — it is binding on the parties. What is the thing that is binding?
Arbitration: this means that you cannot go to a court. No judge. No jury. Instead, you get one (or three) arbitrators who may be lawyers, former judges, folks who work or worked in the nursing home industry, etc. who will act as the judge and juror for your case. You are not allowed to go to court.
What’s the history of the rule on binding arbitration in nursing homes
Almost every nursing home facility required you (or family members) to sign a binding pre-dispute arbitration agreement in order to even get in the facility.
If you refused, they would tell you “Good luck finding a place but you won’t be here. Goodbye.”
In 2016, as the last administration was winding down, a rule came into being that said this is illegal. Nursing homes can’t use arbitration agreements.
The industry had a complete come apart and sued. That caused the rule to be suspended and with the new administration, there was pushback to this 2016 rule.
So in 2017 the government (Centers for Medicare and Medicaid Services) pulled back the rule and studied the issues.
Yesterday afternoon (July 16, 2019), the government released the new rule (in unpublished format) that will be official on July 18 and should go into effect in about 60 days.
What are the new rules now for nursing homes?
Arbitration agreements are acceptable BUT they cannot be required.
A nursing home cannot tell you that you must sign it to get into the facility.
Or to continue to stay at the facility.
And things must be explained in understandable ways. Here is the new law (I’ve highlighted some sections for your attention):
PART 483—REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES 1. The authority citation for part 483 is revised to read as follows: Authority: 42 U.S.C. 1302, 1320a-7, 1395i, 1395hh and 1396r. 2. Section 483.70 is amended by revising paragraph (n) to read as follows:
[These are not optional — these are requirements!]
§483.70 Administration. * * * * * (n) Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.
(1) The facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility and must explicitly inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue to receive care at, the facility.
[Rights must be explained in easy to understand language]
(2) The facility must ensure that: (i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands; (ii) The resident or his or her representative acknowledges that he or she understands the agreement; (iii) The agreement provides for the selection of a neutral arbitrator agreed upon by both parties; and (iv) The agreement provides for the selection of a venue that is convenient to both parties.
[Right to change your mind within 30 days]
(3) The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it.
[Another reminder that you cannot be forced to sign agreement]
(4) The agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility.
(5) The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with §483.10(k).
(6) When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on and be available for inspection upon request by CMS or its designee. * * * * * Dated: February 6, 2019
Things you should consider if you feel your loved one has been abused or neglected in a nursing home
If you have suspicions, definitely have someone look at this for you. Not every bad thing that happens in a nursing home is negligence or malpractice.
But there is plenty of that.
Usually not because the nurses are bad but because the corporation has cut the staffing so much that proper care cannot be given to your loved one. Profits are fine — I have no problem with companies making money.
But when profits are put over the health of residents who have trusted — literally their life — to a long term care nursing home, that’s when there is a problem.
No abuse or neglect should be allowed or tolerated.
In the past here is how nursing homes defended these cases.
First — they would say, “John your client was not in great shape and if they had been, they could have taken the abuse or neglect so its not our fault.” An absolutely stupid argument but one that is made. You would think any jury would be outraged by this because obviously the person in a nursing home is not in great shape. That’s true but these cases normally never get to the jury because . . .
Second — the nursing home would whip out the arbitration agreement and say, “John, your client/family will never see a courtroom. We have arbitrators we like and we will win.” They don’t always but let’s keep it real — there is a reason nursing homes insist on arbitration. Its not for your benefit — it is to protect them when they get caught abusing or neglecting your loved one.
Now this will be changing — no more required arbitration. Do your part and be very careful about signing these agreements and certainly take action against abusive/neglectful nursing homes.
If your loved one is in Alabama, give us a call at 205-876-2447 and we’ll be glad to help. Ask for Carolyn and she can set us up a call — tell her you are calling about nursing home abuse and want to speak directly with me and we’ll help you any way we can.
Thanks!
John Watts