The nursing home industry is fighting new rules set by the Centers for Medicare and Medicaid Services (CMS) that forces facilities that receive government benefits in compensation for the care of their patients to stop requiring new residents and their family members to sign binding arbitration contracts. These agreements essentially force patients to waive their Constitutional right to a trial by jury in the event of elder abuse, sexual abuse or wrongful death.
The arbitration clause is often slipped into new resident contracts and forces patients and family members to settle disputes privately with an arbitrator. The nursing home industry says that the CMS is overstepping its authority in issuing the new rule.
The American Health Care Association and four other state and local health care groups have filed a lawsuit fighting the measure. “Neither the Medicare Act nor the Medicaid Act says anything at all about arbitration agreements or alternative dispute resolution — let alone authorizes HHS or CMS to prohibit use of those agreements entirely,” the group said in its complaint.
Ben Locklar, a lawyer with Beasley Allen Law Firm, says the rule will provide greater protections “for one of the most helpless segments of our society, the elderly. No longer may long-term care facilities force residents and family members into binding arbitration as a result of a facility’s medical negligence that results in harm to a patient.”
The new rules and regulations are a victory for nursing home residents and their families, Locklar said, and “Beasley Allen will continue to aggressively pursue nursing home litigation on behalf of our clients, and now we will once again be free to pursue these cases in the courts of this State.”
The new regulation may not apply to existing arbitration agreements. Thus, Beasley Allen is encouraging people who have loved ones in nursing homes or long-term care facilities to notify the facility Administrator, in writing, that the arbitration provision is being rescinded on behalf of the resident/patient. If the nursing home refuses to accept the written rescission of the arbitration agreement, Beasley Allen encourages citizens to notify the CMS that the respective nursing home is refusing to abide by the new regulations.