Nursing home regulation banning arbitration as a condition of admission may be removed

Nursing home regulation banning arbitration as a condition of admission may be removed
American Bar Association (ABA)
By Stephanie Francis Ward
Posted Jun 16, 2017 10:10 am CDT

A proposed Centers for Medicare & Medicaid Services rule calls for removing regulation that prevents nursing homes from including binding arbitration agreements as a condition of admission.

The existing rule was overhauled by the Obama administration, but has yet to be implemented due to litigation, Modern Healthcare reports. A Mississippi U.S. district court judge in November granted a motion from the American Health Care Association, a nursing home trade group, to block the rule from being implemented on the basis that the CMS did not have authority to enact the mandate without statutory authority.

The proposed rule, released June 5, requires that nursing homes explain the arbitration contracts to residents or their representatives, and the contracts can’t prohibit or encourage parties from communicating with state or federal agencies, according to the article. Also, the proposed rule requires that arbitration contract language not be bogged down in legal jargon.

The AHCA lobbied hard for the proposed rule, resident advocates tell the Los Angeles Times.

"The Trump administration apparently thinks it is [OK] for nursing homes to force seniors into signing contract terms that give up their right to sue in court if they are subsequently victimized by neglect or abuse," Rob Weissman, president of Public Citizen, told the newspaper. "It’s hard to imagine a more callous policy."

The AHCA maintains that arbitration is easier for all parties.

"Arbitration produces swifter resolution to disputes, compensates residents without undue litigation expense for either party, and reduces the funding burden on the Medicare and Medicaid programs," Mark Parkinson, president and CEO of the organization, said in a statement.
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