New proposal allows nursing homes to force residents to give up legal rights

Michael Timmermann | June 8th, 2017

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The Centers for Medicare and Medicaid Services (CMS) has proposed major revisions to a rule that was meant to protect your elderly loved ones from nursing home abuses.

It’s disturbing to think about, but abuse, theft and neglect does happen in long-term care facilities.

Proposed changes to nursing home arbitration rule

A recent CNN investigation revealed widespread sexual abuse and assault in nursing homes. It reports that more than 1,000 nursing homes have been cited for mishandling alleged cases of sexual abuse.

Last year, CMS finalized a rule that banned long-term care facilities from forcing patients and their families to sign pre-dispute arbitration agreements.

Additionally, residents couldn’t be required to sign an arbitration agreement as a condition of their initial admission.

When patients sign an arbitration agreement, they give up their rights to a day in court in the event that there’s some type of dispute, such as one over abuse.

The finalized rule hadn’t gone into effect due to legal challenges from the long-term care industry, which prefers arbitration because it’s typically quicker and less costly than lawsuits.

Now, this new proposal would erase much of what was in the finalized rule, including the arbitration ban. It reads, in part:

Specifically, we propose to remove the requirement precluding facilities from entering into pre-dispute agreements for binding arbitration with any resident or resident’s representative, which we do not believe strikes the best balance between the advantages and disadvantages of pre-dispute arbitration. For the same reason, we also propose removing the prohibition banning facilities from requiring that residents sign arbitration agreements as a condition of admission to a facility. And, we propose removing the provisions regarding the terms of arbitration agreements.

The proposal maintains it will protect the interests of long-term care residents by requiring that arbitration agreements are in plain language so that they’re easily understood.

CMS is accepting public comments on this matter through August 7.

Clark encourages you to make your voice heard on this issue. To do so, follow this direct link or go to http://www.regulations.gov and enter file code CMS-3342-P into the search bar.