CMS proposal would rescind nursing home arbitration agreements

The Centers for Medicare and Medicaid Services and the Trump administration are proposing the removal of a federal law that would protect nursing homes from being sued by patients and their families.

The arbitration ban proposed by the Obama administration had been placed on hold while it was tied up in litigation. On its face, the rule keeps nursing homes from requiring patients and their families to sign arbitration agreements as a requirement of admission to a facility.

In May, the U.S. Supreme Court sided with a nursing home in Kentucky in a case that had challenged the validity of such arbitration agreements. Justices ruled that a lower court had erred when it didn’t give effect to agreements that two women had signed with power of attorney on behalf of their relatives.When each woman’s relatives died, they sued, claiming the care at the facility had been poor. The nursing home pushed to have the cases dismissed, citing the Federal Arbitration Act. Justices found that the lower court should have put the law on par with other contractual agreements.That left the women who had attempted to sue with no case, no matter how poor or good the nursing home care was. CMS has hinted that it favors arbitration over litigation, however, the American Health Care Association, which represents long-term care providers, called the initial ban an “overreach” and praised the CMS for rescinding it.

What happens next remains to be seen. The Obama White House in November had supported the rule, which was the first big change to care provider requirements in more than 25 years. There were other revisions as well – some that the Trump administration is looking to keep in place. Among those? Nursing homes must still go over contracts with patients and families. Furthermore, nursing homes cannot act in a way that discourages or tries to prevent patients and families from seeking help from federal, state or local authorities.

If you believe your loved one is experiencing poor or inadequate nursing home care, it’s important that you speak to an experienced elder care attorney as soon as possible.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

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