Lopsided Arbitration Provisions in Nursing Home Contracts Will Be Barred

Here in our office in Grand Ledge, we were happy to learn about federal rulemaking that will eliminate most arbitration provisions in nursing home contracts.

Nursing home provider contracts have typically used a “take-it-or-leave-it” approach.  A family or person entering the nursing home typically signs a many page contract with the home, and binding private arbitration is often included in the contract.  Folks signed away their rights to have a trial or jury trial or even to consider a trial (some folks might like arbitration if it was an even playing field, but this was not typical of the nursing home admission contracts).

Unlike some business-to-business contracts where the parties have more freedom and time  to negotiate the contract, most people needing a nursing home contract are not negotiating much of anything, and they in fact, are often in a very “rushed” situation.  You know, the hospital discharge planner says they are releasing grandma tomorrow afternoon, or the caregiving spouse of a person with Alzheimer’s just fell and broke their own hip, and now we need a place for the parent with Alzheimers. And so on.  You can picture the stress and rush that goes with most nursing home admissions.

In such tight, almost “pressure cooker” situations, virtually no consumer  could  argue about the  arbitration provision.  And that meant, for at least some folks, a real injustice was done.

On top of this, there had been a bit of confusion about who really could bind a nursing home resident to a contract.  If they were mentally sharp but just physically frail, upon entry, one might argue, such provisions were not too different than other “standard” contracts and the nursing home resident/patient/person involved could have tried another place, or tried negotiation.  They can sign the contract themselves, after all. So such contracts likely were binding on the nursing home resident.

But what of the person with Alzheimers who is actually signed in by a spouse?  Is the spouse’s signature binding on the nursing home resident or patient?  Under what authority? What if signed by an agent under a durable power of attorney?  Or signed by a guardian but not a conservator?

So this idea of  eliminating many of these arbitration provisions in most homes, is a good thing–we’ll see how the issue sorts itself out in the coming months.

You can learn more about this development from Modern Healthcare News here:   http://www.modernhealthcare.com/article/20160928/NEWS/160929906 and if you have the courage to wade through this regulation and others, and wonder how much fun it would be to skim 700 some pages of regs, you can go here:  https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf

Other aspects of these new federal regulations or rules make improvements in regards to some other tough nursing home issues, that faced consumers.  These include such things as  the  right of nursing home residents to have visitors, tighter restrictions against involuntary transfers, a different view or approach to care planning, and tougher rules for nursing homes refusing to readmit a nursing  home patient after they have been hospitalized.   The regs apply to homes that accept federal payment sources (such as Medicare or Medicaid) and that means most nursing homes will fall under the new rules/regs.  The rules actually emerged from the federal Centers for Medicare & Medicaid Services.

 

And remember, if you need help qualifying for assistance to pay for a long term care stay, or if you have issues with a nursing home, you can call our firm to see how we might help.

Brad Vauter  Grand Ledge, MI  Elder Law

517 853-8015

 

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