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Proposed Changes to Nursing Home Requirements (Arbitration Agreements)

In July, the Centers for Medicare and Medicaid Services (CMS) proposed rule changes that would improve the quality of life, care, and services in nursing home facilities that receive funding from Medicare and Medicaid. In an effort to protect residents and keep them safe, the Department of Health and Human Services is aiming to impose rules to protect seniors from abuse, mistreatment, neglect, and fraud. Over the next couple of weeks, the Jehl Law Group will be diving into some of the specifics of the possible rule changes so that you can be more informed as you consider moving your loved ones into a nursing home.

Let’s start by addressing the proposed rule changes regarding arbitration agreements (also known as alternative dispute resolution agreements). In the simplest terms, these agreements state that residents give up their right to a jury trial even if they are injured or die due to the nursing home’s negligent care. Oftentimes, nursing homes put these agreements in their admission paperwork, and residents or their representatives simply sign them without realizing that they are giving up their right to sue in court. The proposed changes try to address this issue by requiring nursing homes to explain what an arbitration agreement is “in a form and manner…that the resident understands.” They also state that the agreement “should not be contained within any other agreement or paperwork.”

In some states (including Tennessee), nursing home facilities go beyond hiding these agreements in admission paperwork, and they actually require that residents sign these agreements in order to gain admission. Nursing homes are allowed to take advantage of people who might not have any other options when a loved one is in need of immediate care by saying sign the agreement that takes away your right to sue or find another facility. The proposed changes also explicitly address this issue: “Admission to the facility must not be contingent upon the resident or the resident representative signing a binding arbitration agreement.” Essentially, if the proposed rule changes go into effect, nursing homes will no longer be allowed to force you into signing an arbitration agreement; instead it must “be entered into by the resident voluntarily.”

Here at the Jehl Law Group we support these changes; however, there are still many questions to be answered. Who will explain the paperwork to residents? How will these individuals be trained? Will they actually be qualified to explain arbitration agreements so “that the resident understands?” How do we prevent nursing homes from pressuring people into signing these agreements even if they are not required for admission?

Regardless of whether these forms are required or voluntary, we strongly encourage you to talk to a lawyer before signing any nursing home arbitration agreements! If you would like to see more information about the Jehl Law Group’s record in cases dealing with arbitration agreements, you can check out our blog post from August 2014.

 

Source: www.federalregister.gov