Forced Nursing Home Arbitration Agreements are Out; Optional Nursing Home Arbitration Agreements are Enforceable

Who Can Sign Mom's Arbitration Agreement with Nursing Home?

New CMS Rule Banning Mandatory Nursing Home Arbitration Agreements

In the rollercoaster that is CMS rules on arbitration of nursing home negligence cases, we have a new rule from CMS.

Now, mandatory nursing home arbitration agreements are prohibited by CMS. However, the federal agency is still allowing optional arbitration agreements, so long as the arbitration clause explicitly explains that signing the agreement is not required. Further the optional arbitration agreement must be stated in plain language, understood by the nursing home resident or his/her power of attorney.

All Nursing Home Arbitration Clauses Are Unfair

As nursing home abuse attorneys, we dedicate our professional lives to fighting for victims of elder abuse and neglect. This means we regularly sue negligent nursing homes for damages arising out of patient falls, bed sores and wrongful death.

However, nursing home arbitration clauses prevent us from going to court to litigate a nursing home injury claim. Instead, we are forced to arbitrate the claim. This means the verdict will be issued by a hand selected arbitrator, as opposed to a jury of your peers. This is problematic for a number of reasons.

The Political Shift of CMS’s Position on Nursing Home Arbitration

CMS is the Centers for Medicare and Medicaid Services. This agency is responsible for the billions of federal healthcare dollars that nursing homes receive to provide care to elderly residents. For this reason, when CMS issues a rule, the nursing home industry must follow it or risk losing their Medicare funding.

During the Obama presidency, CMS issued a rule strictly prohibiting all forms of nursing home arbitration agreements. When Trump took office, CMS issued a new rule in favor or enforcing arbitration agreements in long term care liability cases.

CMS just changed course again. This recent July 2019 rule is a mixed bag. It only prohibits forced, mandatory arbitration.

Why This Recent CMS Rule on Nursing Home Arbitration Falls Short

CMS failed to prohibit arbitration clauses entirely. This is a mistake. Nursing homes will still utilize sneaky arbitration agreements, crafted by their team of lawyers. They will sprinkle in terms that state the arbitration agreement is optional and not required for entry in the nursing home, but the admissions coordinator will likely get the elderly person to sign it without reading it.

This recent CMS rule is unlikely to stem the ever growing tide of nursing home arbitration.

Contemplating Signing a Nursing Home Arbitration Agreement?

Do not sign it! It’s that simple. The facility cannot make signing the agreement as a requirement for admission to the facility. So just don’t sign the arbitration clause.

Concerned Because You’d Like to Sue a Nursing Home but Signed an Arbitration Agreement?

Although a jury trial is preferable, nursing home arbitration awards regularly reach well into the six figures. If you have a meritorious case, the existence of an arbitration clause should not prevent you from investigating the claim. Further, our attorneys have routinely invalidated these nursing home arbitration agreements for various reasons.

Questions on a Nursing Home Injury or Death Claim?

Senior Justice Law Firm is here to help. Our attorneys focus on these kinds of claims. Many of our clients have signed arbitration agreements with the at fault nursing home.

Call or chat with us today so we can investigate your case and explain your legal rights. All case consultations are free and we only get paid if we make a recovery on your case.

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