Just Say No To Arbitration

Frail nursing home residents and their frazzled family members are routinely asked to sign a stack of denselyprinted documents at the time of admission, without adequate time to review them or to consult with counsel, and without realizing that the agreements may include forced arbitration provisions. Arbitration requires residents to waive their fundamental constitutional right to a jury trial, even if they later suffer serious injury, medical malpractice, or wrongful death. Because arbitration is secret and there is no public record of the outcome, it keeps cases of malpractice, abuse and neglect out of the public eye, effectively denying residents and their families access to justice. A new federal rule from Centers for Medicare and Medicaid Services, effective September 16, 2019, provides that: 

  • Residents may not be required to agree to arbitration as a condition of admission to a nursing home.
  • Residents may not be required to agree to arbitration as a condition of continued stay in a nursing home.
  • Residents and their representatives have a 30- ay right to rescind the arbitration agreement.
  • Nursing homes must explicitly inform residents or their representatives of the right not to sign an arbitration agreement as a condition of admission to, or right to remain in, the facility.
  • The arbitration agreement itself must explicitly state that the agreement is not a condition of admission to, or right to remain in, the facility.
  • Facilities must ensure that the agreement is explained to residents and their representatives in a form and manner that they understand, including in a language they understand.

Although the new rule does not impose an outright ban on arbitration agreements in nursing homes, it does affirm the right of residents to just say no to arbitration clauses in admission agreements. Elder advocates should seize this opportunity to educate residents, their families and representatives, and the public about these critical rights.

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