Late last year, a regulation was passed by the Centers for Medicare and Medicaid Services (CMS) that sought to address arbitration requirements for residents of long-term care facilities, such as nursing homes. Prior to that rule, there were no requirements limiting the use or nature of mandatory arbitration agreements. The lack of regulation meant that nursing homes could require patients to sign forms that prevented them from seeking assistance from the courts if they had a problem or experienced abuse or neglect during their stay, whether or not the forms were presented in a manner that was clearly understood by the patient or their families. The acceptance of this new rule, which prevented nursing homes from requiring these forms and demanded that any arbitration forms which were available would be in language readily understood by the patient, was a great victory for the rights of our loved ones under care; but it may never go into effect.
On November 7, 2016, a court-ordered injunction was issued that temporarily prevented the new rule from being enforced. In light of this, CMS reviewed the matter and has proposed a new rule, which would grant nursing homes the right to require patients to sign mandatory arbitration forms before being accepted into their facilities. As Wendy York, an elder law attorney in New York, told NPR, “You're recovering from a major surgery. You're sick. And you have someone pushing 50 pages in front of you to sign...You just start signing where they tell you to sign it. You don't have the ability to concentrate, read or even comprehend what you're signing.”
What CMS Got Right...and Wrong
The proposed rule still includes requirements that arbitration agreements are presented in plain language and in a language that the patient understands, as well as a requirement that the patient or their family confirm that they understand the agreement. This is a step in the right direction, but it comes off vague and still puts all the power in the hands of the nursing home to force patients to sign the form or be turned away.
Arbitration is not a bad thing. It exists for a reason and has certain benefits. As cited by NPR, arbitration doesn’t go through the courts and can, therefore, be more efficient for everyone involved. But that efficiency comes at a price, as victims can be awarded nearly 35% less in arbitration than in court. Also, because arbitration never goes before a judge or jury, it plays by different rules. These rules can benefit the nursing homes instead of the victims, such as a tendency for arbitration results to be more secretive. This not only limits the options plaintiffs have in discussing their case, but also ensures that new patients to the facility have a harder time learning about existing problems. Allowing nursing homes to require this process as a condition of treatment puts far too much control in their hands over how legitimate complaints will be handled.
The proposed rule has not gone into effect yet, and may still be declined in favor of one more beneficial to patients of long-term care facilities. While we continue to monitor its status, patients and their families are encouraged to carefully review any paperwork offered by nursing homes and seek legal advice in any instance of confusion, abuse, or neglect.