The Future of Nursing Home Arbitration Clauses

Over the past few decades, arbitration clauses have become ubiquitous in the contracts that residents (or their family members) must sign prior to being admitted into the nursing home. These arbitration clauses may act to prevent a nursing home resident or their family from pursuing any legal action in the court system against the nursing home. Instead, these claims are settled through an arbitration company that will hear both sides and issue a binding decision. Arbitration clauses are enforced without regard to the strength of the evidence, meaning that even the strongest cases of nursing home abuse and neglect may be prevented from ever reaching a courtroom.

DocumentThe problem for nursing home residents and their families is that the nursing home selects the arbitration company in the pre-admission contract. As a result, the companies that are selected are potentially biased in favor of nursing homes. Additionally, the language of the arbitration clause is often buried deep in dense paragraphs, making it unlikely that potential residents or their family members will read and comprehend the rights they are giving up by signing the contract. This has led many arbitration contracts to be held to be invalid as a matter of law and also as a matter of good public policy.

In a recent development, last year the Center for Medicare and Medicaid Services (CMS) passed a “ban” on arbitration agreements in federally funded nursing homes. This ban required affected nursing homes to either give up their federal funding or stop including pre-dispute arbitration clauses. However, the nursing home industry was successful in obtaining a temporary injunction against the enforcement of the ban from a federal judge. The judge determined that the CMS did not have legal authority to pass the ban. This leaves the future of arbitration clauses and the ability of nursing homes to enforce them up in the air.

According to a recent industry news source, the CMS has indicated that it will appeal the federal judge’s ruling that the agency did not have the authority to pass the ban. Given the importance and far-reaching impact of the issue, it is possible that the issue will end up in front of the United States Supreme Court.

Do You Have a Family Member in a Maryland Nursing Home?

If you have a loved one in a Maryland nursing home, and you believe that they are not receiving the treatment that they should be and may be experiencing nursing home abuse or neglect, contact a dedicated personal injury attorney. It may be that you or your loved one is entitled to monetary compensation, even if one of you signed a nursing home admission contract containing an agreement to arbitrate. The skilled nursing home abuse and neglect attorney at the Maryland personal injury law firm of Lebowitz & Mzhen, LLC have decades of experience helping residents and their families seek the compensation they deserve. Call 410-654-3600 today to set up your free consultation.

More Blog Posts:

Recently Filed Case Claims Nurses Tied Down Resident and Administered Narcotic Medication Against Her Will, Maryland Nursing Home Lawyer Blog, published February 7, 2017.

Nursing Home Abuse Caught in the Act; Charges Unlikely, Maryland Nursing Home Lawyer Blog, published January 27, 2017.

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