- Nursing homes will no longer be able to require future residents to agree to settle disputes via binding arbitration rather than a lawsuit, under a final rule by the Centers for Medicare & Medicare Services.
- The probation follows lobbying by officials in 16 states and the District of Columbia to deny federal funding to nursing homes that use the tactic on grounds that it allows facilities to hide neglect, elder abuse and other wrongdoing from prospective residents and their families, The New York Times reported.
- The new requirement is one of a number of changes aimed at improving care, safety and consumer protections for people living in long-term care facilities in the first major overhaul of nursing home policy in 25 years.
Nursing homes and residents may still opt to use arbitration when a dispute arises.
“Even then, these agreements will need to be clearly explained to residents, including the understanding that these arbitration agreements are voluntary, and that these agreements should not prevent or discourage residents and families from talking to authorities about quality of care concerns,” Andy Slavitt, acting administrator of CMS, and Kate Goodrich, director of the agency’s Center for Clinical Standards & Quality, write in a blog accompanying Wednesday’s release of the rule.
Forced arbitration clauses are seen as unfair and lacking in transparency because they block residents and their families from going to court if they are victims of abuse, severe neglect, sexual harassment, serious injury or wrongful death. As such, they prevent victims and their loved ones from holding long-term care companies accountable.
CMS proposed updating the rules in July 2015, as part of the White House Conference on Aging. Nearly 10,000 comments were submitted to the agency, many taking issue with the use of forced arbitration clauses. Last October, 27 members of Congress sent a letter to CMS urging it to prohibit forced arbitration in nursing home agreements.
In addition to prohibiting binding predispute arbitration clauses, the final rule requires that nursing home staff be properly trained to care for patients with dementia and prevent elder abuse, that individual care plans take into account the goals and preferences of the resident, and that facilities’ level of staffing and services is sufficient to meet the health and medical needs of residents
The new requirements take effect Nov. 28.