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Nursing homes take on CMS's rule to remove arbitration provisions

A number of nursing homes across the country are voicing frustration with the Centers for Medicare and Medicaid Services (CMS). The federal agency recently enacted a mandate that prohibits nursing homes from receiving federal funding if admittance of residents requires an arbitration agreement.

Wait, what's an arbitration agreement? Arbitration is defined by Black's Law Dictionary as an "investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called 'arbitrators,' or 'referees.'"

Essentially, this means that residents that want to sue the nursing facility, such as those who are the victims of nursing home abuse, are unable to hold their abusers accountable in court. Instead, they must go through the required arbitration process which uses a third party to make the determination instead of a judge and potential jury.

Why did the CMS enact a mandate to remove arbitration agreements from nursing home applications? Critics of the system argue that arbitration tends to favor nursing home facilities. They also state that the process is private, meaning other people that are researching facilities may not be aware of previous issues.

How did nursing homes react to this mandate? To put it simply, they sued.

A recent article in ABA Journal, a publication that focuses on legal matters, discussed the case. It noted that the case was filed by a number nursing home groups, including the American Health Care Association. The lawsuit contends that the CMS mandate exceeded the agency's statutory authority and that the mandate was not necessary to protect the health and safety of nursing home residents.

Ultimately, the judge held in favor of nursing homes. Although the judge appeared to agree with the CMS's goals, he stated that the agency did not have the authority to make the mandate. Instead, he states that CMS needs to push for Congress to enact a statute to achieve this goal.

What does this mean for victims of nursing home abuse? Victims and their loved ones still have options, regardless of the fate of this mandate. Even those who signed arbitration agreements may be able to pursue an action in court as the agreements often have exceptions.

Due to the complex nature of these issues, it is often wise for the victim to seek the legal counsel of an experienced nursing home abuse attorney. This legal professional will review the details of your case, including the nursing home agreement, to help better ensure your rights and remedies are protected.

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