If you have been reading my blog, you know that I have concentrated on the battle between the nursing home industry and lawyers on behalf of nursing home residents on the issue of arbitration of disputes.
Nursing homes want disputes resolved by arbitration. Lawyers on behalf of residents want them resolved in court. It has been a hotly contested legal battle with each side justifiably claiming victories and the issue being decided on a fact-drive, case by case basis. There has been no blanket ruling on the subject.
The Centers for Medicare and Medicaid Services, an agency under Health and Human Services, has restored a fundamental right to millions of elderly Americans across the country: their day in court. This federal agency has moved to prevent nursing homes from forcing claims of elderly abuse, sexual harassment and wrongful death into arbitration. Any nursing home that receives federal funding is from requiring that its residents resolve any disputes in arbitration, instead of court.
The new rule on arbitration came after officials in numerous states urged the government to cut off funding to nursing homes that use the clauses, arguing that arbitration kept patterns of wrongdoing hidden from perspective residents and their families. Arbitration clauses found in the fine print of nursing home admissions contracts pushed disputes about safety and quality of care into the dark hole of the arbitration system and out of the public eye as they would be if the disputes found their way into the court system.
This nursing home rule, which was first proposed in July 2015, was aimed at improving disclosure. The thinking was the more prospective clients of nursing homes knew about a facility’s safety records, the better the decision making process would be. Arbitration would limit that disclosure.
Unfortunately, the battle to end arbitration clauses in nursing home contracts is not over yet. This new rule could be challenged in court. Expect that to happen. Expect the battle to be heated. Expect more updates on this subject.