WV Nursing Home Abuse Complaints No Longer Require Arbitration
A new ruling that bars nursing homes from forcing residents to resort to arbitration in order to pursue their complaints of nursing home abuse promises a greater likelihood of justice for nursing home residents and their families in West Virginia and across the country.
"With its decision, the Centers for Medicare and Medicaid Services [CMS], an agency under Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court," said The New York Times.
The ruling prohibits any nursing home that receives federal funding - which is virtually all nursing homes - from requiring that its residents resolve disputes in arbitration instead of court.
This requirement is often a single line in a dense nursing home services contract, which pushes complaints out of the public system of justice and into the private, binding system of arbitration.
Private Arbitration vs. Open Court Hearings of Nursing Home Abuse
Few people dealing with the shock and stress of nursing home abuse - whether it occurred to themselves or a loved one - understand the arbitration system.
Under arbitration, a panel decides the outcome of a case instead of jury. Because arbitration panel members are proposed by the parties, nursing homes can maneuver to position people they regularly work with as arbitrators. Typically, individuals with backgrounds in nursing home administration sit as members of arbitration panels.
Panel members who have become too close to nursing home personnel or who are biased by ties to the industry may find little reason to rule for an aggrieved family or elderly resident that has been abused or neglected.
Unlike a jury trial, there is no opportunity to appeal a decision arrived at through arbitration.
Additionally, arbitration can require high fees that ultimately deter people from pursuing cases of neglect or abuse that occur in nursing homes.
CMS Reform of Requirements for Long-Term Care Facilities
The new rule banning arbitration came after attorneys general from 16 states and the District of Columbia urged the government to cut off funding to nursing homes that require arbitration.
The private nature of arbitration keeps patterns of wrongdoing hidden from prospective nursing home residents and their families, the petitioners said.
Some of those who commented on the rule change at the proposal stage cited "the coercive nature of having the resident sign the agreement during the admission process, before any dispute has arisen," the CMS said.
The new CMS rule states:
"We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."
This means arbitration is still available to a nursing home resident, but it is not required and cannot be part of a contract for services. It is important to understand that only future nursing home admissions would fall under the new rule.
Existing nursing home contracts that require arbitration of disputes remain enforceable.
The new rules, which contain multiple policy revisions, are to be effective November 28, 2016. Because it is a policy change and not legislation, the new rules could be challenged in court and delayed, and eventually changed.
At Mani Ellis & Layne, PLLC, we can help you to understand the potential impact of this new rule on a claim involving you or your loved one. Contact us today to receive a free and confidential consultation.