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Consumer Groups Gear Up in Last Fight for Arbitration Ban


Posted on behalf of D'Amico & Pettinicchi, LLC on Aug 07, 2017 in Nursing Home Abuse

male nursing home resident thinkingMore than 75 consumer, health and advocacy groups have joined together to form the Fair Arbitration Now Coalition in an effort to stop the Centers for Medicare and Medicaid Services (CMS) from reversing a previous ruling that banned the use of pre-dispute binding arbitration agreements as a requirement for admittance into nursing homes.

Pre-dispute binding arbitration agreements require that any dispute that arises in a nursing home, including those involving abuse, neglect or questions of care, be handled through arbitration. In this process, the nursing home hires an arbitrator to hear the arguments and evidence from both sides before making a final decision to resolve the dispute. It strips residents of their right to choose to have their case heard by a judge and jury.

As strong advocates for the rights of nursing home residents, our Waterbury nursing home abuse attorneys strongly oppose any rulings that strip residents of their basic right to a trial by jury.

CMS Reverses its Arbitration Ban

In September 2016, the CMS issued a final rule banning the use of pre-dispute arbitration agreements by nursing homes receiving funding from Medicare or Medicaid.

The ruling prevented nursing homes from requiring incoming residents to sign pre-dispute binding arbitration agreements as a condition for admittance into the facility. This prevented facilities from entering into an arbitration agreement until after a dispute had arisen, ensuring that residents have a right to choose how their case is handled.

However, just nine months later, under a new administration, the CMS announced that it would reverse the ban. The decision came after the American Health Care Association and several nursing homes sued for preliminary and permanent injunction to stop the rule from being enforced.

After the court issued a preliminary injunction in November 2016, the CMS stated that it would review and reconsider the requirements of the rule. In June 2017, it proposed several changes, including:

  • A removal of the ban on pre-dispute binding arbitration agreements, allowing facilities to use the agreements as a requirement for admittance
  • All agreements must use plain language
  • All agreements must be explained to the resident and his or her representative in a way he or she understands
  • The resident must acknowledge that he or she understands the agreement
  • The agreement cannot contain language that discourages or prevents the resident or others from communicating with local, state or federal officials
  • The facility must maintain a copy of the signed agreement with the arbitrator’s final decision if any disputes are resolved through arbitration
  • The facility must post a notice of its use of arbitration agreements in a location that is visible to residents and visitors

The CMS is accepting public comments on the proposal through today.

The Dangers of Pre-Dispute Arbitration Agreements

Opponents of the ban reversal claim that the use of pre-dispute arbitration agreements creates an unequal balance of power between nursing homes and residents. Many have argued that:

  • Admitting someone to a nursing home is often stressful and emotional for the resident and family members.
  • Many do not know that they are signing these agreements or are unaware of what they mean.
  • Studies indicate that arbitration tends to favor nursing homes who are paying the arbitrator who makes the final decision on the dispute.
  • The proceedings and outcome of arbitration are sealed from the public.

Furthermore, AARP, which is part of the coalition against the proposed changes, argues that the CMS’ reasoning behind the reversal contradicts the evidence the agency cited in 2016 when the rule was originally issued.

Committed to Fighting for the Rights of Nursing Home Residents

At D’Amico & Pettinicchi, our nursing home abuse attorneys are staunch advocates for the rights of nursing home residents. Because of this, we are committed to fighting for those who have been abused or neglected while in the care of nursing home facilities.

If your loved one has been injured or is not receiving the care he or she deserves, contact our accomplished Waterbury personal injury lawyers for a free, no obligation consultation to learn about your legal options.

Call (866) 848-7077 or complete a Free Case Evaluation form.