Nursing homes get forced arbitration back


AAJ-forced arbitration

Posted 6/06/17
by Levin & Perconti
Illinois Nursing Home Abuse Blog

Trump Administration Abandons Fight for Ban on Nursing Home Arbitration Clauses

What little hope remained that arbitration clauses would disappear from nursing home admission paperwork is now gone. Friday, June 2 was the deadline for the Trump Administration to submit paperwork to continue the appeal of a Mississippi Supreme Court judge’s decision to block a ban on nursing home arbitration clauses.  Instead, the administration decided to withdraw from the fight.

An Attempt to Restore Justice
Last September, the Centers for Medicare and Medicaid Services (CMS) released their updates to nursing home regulations for the over 15,000 facilities that currently receive Medicare and/or Medicaid support. One of the biggest changes was a ban on mandatory arbitration clauses in nursing home admission paperwork. An arbitration clause requires a potential plaintiff to agree to forgo a trial by jury and work with an arbitrator who will attempt to get both sides to come to an agreement on a settlement. The problem, besides the fact that it forces vulnerable Americans to waive their seventh amendment right to a trial, is that nursing home arbitration typically favors the defense by allowing them to select the arbitrator. Evidence has shown that when nursing home disputes are settled by arbitration, the outcome tends to be more positive for the guilty party and not the injured victim.

Special Interest Groups Fight Ban
Last December, a nursing home special interest group filed an injunction in the Mississippi Supreme Court to stop CMS’ arbitration ban from taking effect. A judge supported the injunction and since then, CMS and the Trump administration were said to be working on a appeal. Unfortunately, instead of filing paperwork to continue their appeal, U.S. Department of Justice attorneys decided to abandon the fight. While there is a small chance that the appeal could be challenged again at the district level, CMS hasn’t answered what future plans for the ban are and arbitration clauses in nursing homes seem to be here to stay.

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