Effective November 28,. 2016 long term care facilities, as a condition to receiving Medicare and Medicaid payments, will not be allowed to enter into “pre-dispute” arbitration agreements with residents. (42 U.S.C. section 483.70). Such agreements, typically presented to a resident when they are in greatest need and most vulnerable at the time of admission to the nursing home, effectively deprive the resident of the right to litigate disputes in court before a jury or judge. So, for example, if a resident has signed a pre-dispute arbitration agreement and falls and sustains a serious hip or head injury, they are required to present the case to an arbitrator or panel of arbitrators, usually someone paid by the nursing home, and usually someone who decides the case in favor of the home. The resident does not have the benefits or protections of the civil justice system and any decision of the arbitrator cannot be appealed. Additionally, such agreements provide for confidentiality of any decision, thus prohibiting the making public of horrendous conditions that may exist in nursing homes. Though the new rule does not affect agreements entered into before that date, it is a provision that is long overdue and should pave the way for improving the quality of care in long term care facilities.
Nonetheless, even though nursing homes will be prohibited from entering into pre-dispute arbitration agreements after November 28, 2016, they will still be permitted to enter into agreements to arbitrate existing disputes. Prior to entering into such agreement, it is strongly recommended that the resident or their family members first consult with an attorney qualified in the area of nursing home litigation. Typically, such agreements are offered to secure an advantage for the nursing home, rather than provide for reasonable compensation to the resident. For the most part, any invitation to arbitrate a dispute should be met with skepticism.