Littman Krooks

Update (12/1/2016): “The rule was supposed to take effect Nov. 28, but the American Health Care Association, an industry group that represents most nursing homes in the U.S., filed a lawsuit in October to block the rule, which it called “arbitrary and capricious.” To read more, click here.

A rule change by a federal agency will provide nursing home residents with major new legal protections by preventing facilities from forcing disputes into arbitration.

The Centers for Medicare and Medicaid Services (CMS), part of the Health and Human Services Department, issued a rule preventing nursing homes from requiring that residents resolve disputes in arbitration rather than through a lawsuit. The rule applies to all facilities that receive federal funding, protecting the rights of 1.5 million residents. The arbitration ban is one of several new nursing home regulations promulgated by CMS, including new standards for nutrition and infection control.

Many families must make the decision about a nursing home under time pressure and in emotional turmoil, and they often are not able to consider the implications of all the contract terms. Nursing home contracts often contain fine print requiring that disputes be resolved through arbitration, taking away the right to sue for elder abuse, neglect and even wrongful death.

The nursing home industry said that the rule change, “clearly exceeds the agency’s authority.” Arbitration has reduced legal costs for nursing homes, but advocates for seniors say that it has prevented residents and their families from getting justice. Officials in 16 states and the District of Columbia had urged government action, arguing that private arbitration kept patterns of abuse hidden.

The new rule goes into effect on Nov. 28. It does not apply to contracts signed prior to that date, but current nursing home residents or their families can review their contracts and attempt to renegotiate or choose to move to another facility. After Nov. 28, nursing homes may still ask for a dispute to be settled through arbitration, but residents and their families have the right to file a lawsuit instead.

Join us for a free workshop on estate planning, “Plan for Your Future and Avoid Guardianship” on December 7, 2016 at the Greenburgh Library from 10:00 AM-12:00 PM. Registration is required because seating is limited. For more information or to register, click here.

Learn more about our elder law, guardianship and estate planning services.