Protecting Our Elders: Nursing Homes Receiving Medicare and Medicaid Funding Now Banned From Forcing Pre-Dispute Arbitration Agreements

By: Pamela A. Lee, Esquire
Last week, the Centers for Medicare & Medicaid Services-a federal agency which controls Medicare and Medicaid funding-released comprehensive revisions to the federal nursing home regulations.

Notably, the revised regulations now prohibit pre-dispute arbitration agreements. What does this mean for you and your loved ones? It means that any nursing home that receives federal funding will be banned from requiring its residents in advance to resolve their future disputes in arbitration instead of court. Disputes include nursing home abuse and neglect.

Arbitration is a form of alternative dispute resolution in which the parties agree to resolve their dispute in a private proceeding before an arbitrator without litigating in court before a jury of your peers. So if a dispute later arises, a nursing home arbitration agreement tries to prohibit you from suing the nursing home in court before a jury and instead force you to go through the arbitration process. Unfortunately, the arbitrator’s decision will most likely be your final recourse, which means you will not be allowed to appeal to a court if you believe the decision was wrong or unfair.

Other positive revisions to the regulations include the following:

  • Added emphasis on person-centered care including providing greater support for resident preferences and increased resident control and choice;
  • Requires a baseline care plan for a new resident within 48 hours of admission, including greater resident involvement and participation as well as participation from nutrition/food personnel and the resident’s certified nursing assistant;
  • Added provisions for the prevention of abuse, neglect and exploitation, including the prohibition of hiring of licensed individuals with past disciplinary actions and suspected crimes must be reported to law enforcement and the state survey and certification agency; and
  • Requiring facilities to have a grievance policy and a grievance official to oversee the grievance process at the facility and mandating that complainants receive written grievance decision including the steps taken to investigate, a summary of the finding or conclusions, a statement as to whether the grievance was confirmed or not, and the action taken by the facility.

The revised regulations also include the following negatives:

  • No minimum staffing standard or a requirement for a 24-hour registered nurse but only requires sufficient staffing levels with staff with appropriate competencies and skill sets and a registered nurse for eight house daily;  and
  • Weakened regulations regarding the use of antipsychotic drugs.

The new regulations become effective through states.  Phase 1 – including the ban on pre-dispute arbitration agreements – must be implemented by November 1, 2016.  Phase 2 must be implemented by November 28, 2017 and the third and final phase, Phase 3, must be implemented by November 28, 2019.

Unfortunately, these revised rules regulate only skilled nursing facilities and do not regulate assisted living facilities or personal care homes.

In addition, arbitration agreements signed after an event giving rise to a dispute will be enforceable under the new regulations.

If you’re presented with a proposed nursing home arbitration agreement, you should always first seek the advice of an attorney before signing it.  And if you’ve already signed one and now have a legal dispute with the nursing home but are being told that it must go to arbitration, you should still seek the advice of an attorney – because an attorney’s review may reveal that it’s not legally enforceable and that you therefore have other legal recourses, such as a right to trial by jury.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Please contact Pamela A. Lee, Esquire at the Law Firm of DiOrio & Sereni, LLP at 610-565-5700 or email her at [email protected].

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